UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
`
`Before The Honorable Theodore R. Essex
`Administrative Law Judge
`
`In the Matter of
`
`CERTAIN MOBILE DEVICES AND (cid:9)
`RELATED SOFTWARE
`
`Investigation No. 337-TA-750
`
`UNOPPOSED JOINT MOTION OF
`COMPLAINANT APPLE INC. AND NON-PARTY GOOGLE INC.
`TO AMEND THE PROTECTIVE ORDER
`
`Pursuant to Commission Rules 210.15 and 210.26, Complainant Apple Inc. ("Apple")
`
`and non-party Google Inc. hereby respectfully move to amend the Protective Order (Order No. 1,
`
`as amended by Order No. 4) to extend certain provisions of the Protective Order to non-parties.
`
`This motion is supported by the attached memorandum of points and authorities.
`
`Pursuant to Ground Rule 3.2, Apple has contacted the other parties to this investigation,
`
`and neither the Respondents nor the Staff oppose this motion.
`
`

`
`Dated: June 15, 2011 (cid:9)
`
`Respectfully submitted
`
`lGSl
`
`Amy Candido
`Quinn Emanuel Urquhart & Sullivan LLP
`.50 California Street, 22nd Floor
`San Francisco, CA 94111
`(415) 875 -6600
`(415) 875 -6700 facsimile
`
`Matthew Warren
`Quinn Emanuel Urquhart & Sullivan LLP
`865 S. Figueroa St., 10th Floor
`Los Angeles, California 90017
`(213) 443-3000
`(213) 443-3100 facsimile
`
`Attorneys for Non-Party Google Inc.
`
`Mark G. Dais
`Robert T. Viasis
`Edward S. Jou
`Weil, Gotshal & Manges LLP
`1300 Eye Street, N.W., Suite 900
`Washington, D.C. 20005
`Tel.: (202) 682-7000
`
`Matthew D. Powers
`Steven S. Cherensky
`Jason D. Kipnis
`Joseph H. Lee
`Weil, Gotshal & Manges LLP
`201 Redwood Shores Parkway
`Redwood Shores, CA 94065
`Tel.: (650) 802-3000
`
`Kevin Kudlac
`Calvin Y. Cheng
`Weil, Gotshal & Manges LLP
`700 Louisiana, Suite 1600
`Houston, TX 77002
`Tel.: (713) 546-5000
`
`Attorneys for Complainant Apple Inc.
`
`

`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
`
`Before The Honorable Theodore R. Essex
`Administrative Law Judge
`
`In the Matter of
`
`CERTAIN MOBILE DEVICES AND
`RELATED SOFTWARE
`
`Investigation No. 337-TA-750
`
`MEMORANDUM IN SUPPORT OF THE UNOPPOSED JOINT MOTION OF
`APPLE AND GOOGLE TO AMEND THE PROTECTIVE ORDER
`
`Pursuant to Commission Rules 210.15 and 210.26, Complainant Apple Inc. ("Apple")
`
`and non-party Google Inc. ("Google") hereby respectfully move to amend the Protective Order
`
`(Order No. 1, as amended by Order No. 4) to extend enhanced confidentiality protections for
`
`electronic computer code, a prosecution bar, and a clawback provision to non-parties, and to
`
`establish additional protections for Google source code.
`
`While the Protective Order, as amended, provides protections for confidential business
`
`.information and source code made available by the parties in this investigation, it does not
`
`specifically provide protection for source code produced by non-parties, nor do the provisions for
`
`a patent prosecution bar explicitly apply to non-parties. In addition, Google has requested
`
`additional protections for its confidential source code, and Apple has agreed to these protections.
`
`As set forth in the Joint Motion to Amend the Protective Order (Motion Docket No. 750-
`
`001), which was granted by the Administrative Law Judge on January 14, 2011 (Order No.11),
`
`enhanced confidentiality protection for electronic computer code is appropriate under
`
`Commission Rule 201.6 because it is highly sensitive confidential business information, the
`
`disclosure of which would have the likely effect of impairing the Commission's ability to obtain
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`3
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`

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`such information as is necessary to perform its statutory functions and would cause substantial
`
`harm to the competitive position of the party from which the information was obtained.
`
`Accordingly, Apple and Google request that the ALJ enter the attached Order
`
`incorporating Paragraph Nos. 21 and 22 into the Protective Order in this Investigation.
`
`Respectfully submitted
`JCS?
`
`A44
`
`I/ (cid:9)
`
`Amy Candido
`Quinn Emanuel Urquhart & Sullivan LLP
`50 California Street, 22nd Floor
`San Francisco, CA 94111
`(415) 875-6600
`(415) 875-6700 facsimile
`
`Matthew Warren
`Quinn Emanuel Urquhart & Sullivan LLP
`865 S. Figueroa St., 10th Floor
`Los Angeles, California 90017
`(213) 443-3000
`(213) 443-3100 facsimile
`
`Attorneys for Non-Party Google Inc.
`
`Dated: June 15, 2011
`
`Mark G. Davis
`Robert T. Vlasis
`Edward S. Jou
`Weil, Gotshal & Manges LLP
`1300 Eye Street, N.W., Suite 900
`Washington, D.C. 20005
`Tel.: (202) 682-7000
`
`Matthew D. Powers
`Steven S. Cherensky
`Jason D. Kipnis
`Joseph H. Lee
`Weil, Gotshal & Manges LLP
`201 Redwood Shores Parkway
`Redwood Shores, CA 94065
`Tel.: (650) 802-3000
`
`Kevin Kudlac
`Calvin Y. Cheng
`Weil, Gotshal & Manges LLP
`700 Louisiana, Suite 1600
`Houston, TX 77002
`Tel.: (713) 546-5000
`
`Attorneys for Complainant Apple Inc.
`
`2
`
`(cid:9)
`

`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
`
`Before The Honorable Theodore R. Essex
`Administrative Law Judge
`
`In the Matter of
`
`CERTAIN MOBILE DEVICES AND
`RELATED SOFTWARE
`
`Investigation No. 337-TA-750
`
`ORDER NO.
`
`Upon consideration of the joint motion to amend the protective order, filed by
`
`Complainant Apple Inc. ("Apple") and Non-Party Google Inc., in the above-captioned
`
`investigation, the Protective Order as it pertains to discovery in this Investigation is amended as
`
`follows.
`
`The following provisions shall be incorporated as Paragraph Nos. 21 and 22:
`
`Non-Parties. Non-parties to this investigation are entitled to protection of their
`21. (cid:9)
`confidential information produced under the terms of this Protective Order, as set forth in Order
`No. 1, as amended by Order No. 4. These include the specific protections set forth below:
`
`Source Code. Non-parties to this investigation shall have the same protection
`A.
`provided to the parties in paragraph no. 18 of the Protective Order. Nonparties shall make source
`code, if any, available at the offices of their legal counsel, or at another location mutually agreed
`by the producing nonparty and the requesting party. any reference to a "producing party" in
`paragraph no. 18 of the protective order shall also apply to a "producing non-party."
`
`Prosecution Bar. Absent the written consent of a producing non-party, any person
`B.
`that receives access to confidential material produced pursuant to this Protective Order shall not
`be involved in the prosecution of patents or patent applications relating to the subject matter of
`the confidential material before any foreign or domestic agency, including the United States
`Patent and Trademark Office. Nevertheless, persons having access to materials produced
`pursuant to this protective order may have limited involvement in reexamination proceedings
`pertaining to the patent in suit or other related patents, but in these proceedings they are barred
`against having any involvement, direct or indirect, in the drafting or amending of patent claims,
`or the supervising of the drafting or amending of patent claims in connection with any such
`reexamination proceeding. These prohibitions on patent prosecution shall begin when access to
`protected material is first received by the affected individual, and shall end one (1) year after the
`
`(cid:9)
`

`
`final resolution of this action, including all appeals. This prosecution bar is personal to the
`person receiving such protected material and shall not be imputed to any other person or entity.
`
`Clawback Provision. Nothing in this Protective Order shall require production of
`C. (cid:9)
`information that a non-party contends is protected from disclosure by the attorney-client
`privilege, the work product immunity or other privilege, doctrine, right, or immunity. If
`information subject to a claim of attorney-client privilege, work product immunity, or other
`privilege, doctrine, right, or immunity is nevertheless inadvertently or unintentionally produced
`by a non-party, such production shall in no way prejudice or otherwise constitute a waiver or
`estoppel as to any such privilege, doctrine, right or immunity. If materials protected by the
`attorney-client privilege, work product privilege, or other privilege, doctrine, right, or immunity
`are inadvertently produced by a non-party, it may obtain the return of those materials by
`promptly notifying the recipient(s) and providing a privilege log for the inadvertently produced
`materials. The recipient(s) shall gather and return all copies of the privileged material to the
`non-party, except for any pages containing privileged markings by the recipient, which pages
`shall instead be destroyed and certified as such by the recipient to the non-party.
`
`Non-Party Google Inc. The following additional protections shall apply to
`22. (cid:9)
`confidential source code produced by non-party Google Inc.:
`
`A. Limit on Number of Reviewers Accessing Secure Room and Source Code Printouts.
`The following provisions shall apply to individuals with access to the confidential source code
`produced by non-party Google Inc.:
`
`(1) No more than a total of 20 individuals identified by the receiving party shall
`have access to the secure room in which the Google Inc. produces material
`designated as Highly Confidential — Source Code Information.
`
`(2) No more than a total of 30 individuals identified by the receiving party shall
`have access to the printed portions of material produced by Google Inc.
`designated as Highly Confidential — Source Code Information (except insofar as
`such code appears in any filing with the Commission or Administrative Law
`Judge or expert report in this case).
`
`B. Rebuttable Presumption Regarding Unduly Long Excerpts. The receiving party may
`print only those portions of files that are necessary to the preparation of its case. In the event that
`the receiving party believes there is a need to print more than ten (10) contiguous pages, up to a
`total of 100 printed pages, the burden shall be on the receiving party to demonstrate that such
`printed portions are no more than is reasonably necessary for a permitted purpose and not merely
`printed for the purposes of review and analysis elsewhere.
`
`C. Separate Review of Individuals Inspecting Google Source Code. Prior to the first
`inspection of any material produced by Google Inc. designated as Highly Confidential — Source
`Code Information, the requesting party shall provide ten (10) days notice. The requesting party
`shall provide two (2) days notice prior to any additional inspections of the same source code
`files, although Google Inc. will be reasonable in accommodating requests of less than two (2)
`days. The receiving party shall identify any individual who will be given access to the material
`
`6
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`

`
`produced by Google Inc. designated as Highly Confidential — Source Code Information at least
`ten (10) days prior to the first time any such individual is given access to the source code files,
`after which time Google Inc. may object to providing access to any persons so identified. The
`receiving party shall provide two (2) days notice any time each such individual is given access to
`the material produced by Google Inc. designated as Highly Confidential — Source Code
`Information after the first time, although Google Inc. will be reasonable in accommodating
`notice of less than two (2) days. If an objection to an individual is made by Google Inc., it will
`be the burden of Google Inc. to prove that the individual shall not be authorized to inspect
`material produced by Google Inc. designated as Highly Confidential — Source Code Information.
`
`D. Protection Against Adverse Use of Source Code by Technical Advisors. The
`following provisions shall apply to technical advisors with access to the confidential source code
`produced by non-party Google Inc.:
`
`(1) Any technical advisor who is approved by Google Inc. shall not be given
`access to material produced by Google Inc. designated as Highly Confidential —
`Source Code Information unless he or she shall have (a) complied with the terms
`of paragraph 4, and (b) agreed in writing not to write source code directly
`intended for commercial purposes relating to the technical subject matter of the
`material produced by Google Inc. designated as Highly Confidential — Source
`Code Information for a period of six (6) months after the issuance of a final, non-
`appealable decision resolving all issues in this Investigation.
`
`(2) No technical advisor shall have access to material produced by Google Inc.
`designated as Highly Confidential — Source Code Information unless he or she is
`not involved in competitive-decision making, as defined by U.S. Steel v. United
`States, 730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984), on behalf of a party or a
`competitor of a party in the technical subject matter of the confidential business
`information or material produced by Google Inc. designated as Highly
`Confidential — Source Code Information.
`
`E. Use of Google Source Code at Depositions. For depositions, the receiving party shall
`not bring copies of any printed material produced by Google Inc. designated as Highly
`Confidential — Source Code Information. Rather, at least five (5) days before the date of the
`deposition, the receiving party shall notify Google Inc. about the specific portions of material
`produced by Google Inc. designated as Highly Confidential — Source Code Information it wishes
`to use at the deposition, and Google Inc. shall bring printed copies of those portions to the
`deposition for use by the receiving party. All paper copies of material produced by Google Inc.
`designated as Highly Confidential — Source Code Information brought to the deposition shall be
`securely destroyed in a timely manner following the deposition.
`
`Issued: June (cid:9)
`
`2011
`
`Theodore R. Essex
`Administrative Law Judge
`
`V1
`
`

`
`CERTIFICATE OF SERVICE
`
`I hereby certify that a copy of the foregoing was served on June 15, 2011 as indicated, on
`the following:
`
`Via EDIS
`James R. Holbein
`Secretary
`U.S. International Trade Commission
`500 E Street SW, Room 112
`Washington, D.C. 20436
`
`Via E-mail and Hand Delivery
`Anne Goalwin
`Office of Unfair Import Investigations
`U.S. International Trade Commission
`500 E Street SW, Room 401
`Washington, D.C. 20436
`
`anne. goalwin@usitc.gov
`
`Via E-mail
`Charles K. Verhoeven
`Quinn Emanuel Urquhart & Sullivan LLP
`50 California Street, 22nd Floor
`San Francisco, CA 94111
`
`David A. Nelson
`Quinn Emanuel Urquhart & Sullivan LLP
`500 West Madison Street, Ste. 2450
`Chicago, IL 60661
`
`Edward J. DeFranco
`Quinn Emanuel Urquhart & Sullivan LLP
`51 Madison Avenue, 22nd Floor
`New York, NY 10010
`
`Moto-Apple-750@quinnemanuel.com
`
`Via Hand Delivery (2 copies)
`The Honorable Theodore Essex
`Office of the Administrative Law Judge
`U.S. International Trade Commission
`500 E Street SW, Room 317
`Washington, D.C. 20436
`
`Via E-mail and Hand Delivery
`Charles F. Schill
`STEPTOE & JOHNSON LLP
`1330 Connecticut Avenue, N.W.
`Washington, D.C. 20036
`
`Motorola750@steptoe.com
`
`Via E-mail
`Robert T. Haslam
`Jessica R. Gioia
`Krista S. Jacobsen
`Covington & Burling LLP
`333 Twin Dolphin Drive, Suite 700
`Redwood Shores, CA 94065-1418
`
`Jeffrey T. Pearlman
`Nathan Shafroth
`Covington & Burling LLP
`One Front Street
`San Francisco, CA 94111-5356
`
`AppleCov@cov.com
`
`Tessa Strasser
`Paralegal