Case 1:19-cv-11586-IT Document 58-1 Filed 03/31/20 Page 1 of 18
`Case 1:19-cv-11586—IT Document 58-1 Filed 03/31/20 Page 1 of 18
`
`
`
`
`
`
`EXHIBIT A
`
`EXHIBIT A
`
`

`

`Case 1:19-cv-11586-IT Document 58-1 Filed 03/31/20 Page 2 of 18
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
`
`PHILIPS NORTH AMERICA LLC,
`
`
`
`
`
`FITBIT, INC.
`
`
`
`
`
`v.
`
`
`
`Plaintiff,
`
`Defendant.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`[PROPOSED] PROTECTIVE ORDER
`
`C.A. No. 1:19-cv-11586
`
`
`
`WHEREAS, documents and information may be sought, produced or exhibited by and
`
`among the parties to the above captioned proceeding, which materials relate to trade secrets or
`
`other confidential research, development or commercial information;
`
`IT IS HEREBY ORDERED THAT:
`
`1. Confidential business information is information which concerns or relates to the trade
`
`secrets, processes, operations, style of work, or apparatus, or to the production, sales, shipments,
`
`purchases, transfers, identification of customers, inventories, amount or source of any income,
`
`profits, losses, or expenditures of any person, firm, partnership, corporation, or other organization,
`
`or other information of commercial value, the disclosure of which is likely to have the effect of
`
`either causing substantial harm to the competitive position of the person, firm, partnership,
`
`corporation, or other organization from which the information was obtained.
`
`2. Any information submitted, in discovery or in a pleading, motion, or response to a
`
`motion either voluntarily or pursuant to lawful discovery request, or a court order, which is asserted
`
`4847-7508-1399.2
`
`1
`
`

`

`Case 1:19-cv-11586-IT Document 58-1 Filed 03/31/20 Page 3 of 18
`
`
`
`by a party to contain or constitute confidential business information shall be so designated by such
`
`party in writing, or orally at a deposition, conference or hearing. Documents shall be clearly and
`
`prominently marked on their face with the legend: “CONFIDENTIAL” or a comparable notice.
`
`Such information, whether submitted in writing or in oral testimony, shall be treated in accordance
`
`with the terms of this protective order. No party shall redact confidential information in a
`
`document; rather, the disclosing party should simply label the document as Confidential, and if it
`
`becomes relevant, will inform the receiving party subsequently of any particular portion of the
`
`document deemed confidential.
`
`3. In the absence of written permission from the disclosing party or an order by the Court,
`
`any confidential documents or business information submitted in accordance with the provisions
`
`of paragraph 2 above shall not be disclosed to any person other than: (i) outside counsel for parties
`
`to this action, including necessary secretarial and support personnel assisting such counsel; (ii)
`
`qualified persons taking testimony involving such documents or information and necessary
`
`stenographic and clerical personnel thereof; (iii) technical experts and their staff who are employed
`
`for the purposes of this litigation (unless they are otherwise employed by, consultants to, or
`
`otherwise affiliated with a non-governmental party, or are employees of any domestic or foreign
`
`manufacturer, wholesaler, retailer, or distributor of the products, devices or component parts that
`
`are the subject of this action); (iv) the Court and its staff.
`
`4. Confidential business information submitted in accordance with the provisions of
`
`paragraph 2 above shall not be made available to any person designated in paragraph 3(iii) unless
`
`he or she shall have first read this order and shall have signed the undertaking at Attachment A.
`
`However, Attorneys who have filed an appearance in this matter need not sign the undertaking at
`
`4847-7508-1399.2
`
`2
`
`

`

`Case 1:19-cv-11586-IT Document 58-1 Filed 03/31/20 Page 4 of 18
`
`
`
`Attachment A, but shall nevertheless be subject to, and bound by, the provisions of this Protective
`
`Order.
`
`5. If the Court orders, or the disclosing party agrees, that access to, or dissemination of
`
`information submitted as confidential business information shall be made to persons not included
`
`in paragraph 3 above, such matter shall only be accessible to, or disseminated to, such persons
`
`based upon the conditions pertaining to, and obligations arising from this order, and such persons
`
`shall be considered subject to it, unless the Court finds that the information is not confidential
`
`business information as defined in paragraph 1 hereof.
`
`6. Any confidential business information submitted to the Court in connection with a
`
`motion or other proceeding shall be submitted under seal pursuant to the Local Rules.
`
`7. The restrictions upon, and obligations accruing to, persons who become subject to this
`
`order shall not apply to any information submitted in accordance with paragraph 2 above to which
`
`the person asserting the confidential status thereof agrees in writing, or the Court rules, after an
`
`opportunity for hearing, was publicly known at the time it was supplied to the receiving party or
`
`has since become publicly known through no fault of the receiving party.
`
`8. If a party who receives materials or information that has been designated as confidential
`
`and submitted in accordance with paragraph 2 disagrees with respect to such a designation, in full
`
`or in part, it shall notify the disclosing party in writing, and they will thereupon confer as to the
`
`status of the subject information proffered within the context of this order. If the receiving party
`
`and the disclosing party are unable to concur upon the status of the subject information submitted
`
`as confidential business information within ten days from the date of notification of such
`
`disagreement, the party challenging the confidentiality designation may file a motion with the
`3
`
`4847-7508-1399.2
`
`

`

`Case 1:19-cv-11586-IT Document 58-1 Filed 03/31/20 Page 5 of 18
`
`
`
`Court seeking to remove the confidentiality designation. If such motion is granted, the non-movant
`
`shall compensate the movant for the reasonable expenses and fees associated with the motion. In
`
`the event of a mixed result, the Court may fairly apportion fees and expenses. The Court may sua
`
`sponte question the designation of the confidential status of any information and, after opportunity
`
`for hearing, may remove the confidentiality designation.
`
`9. No less than 10 days (or any other period of time designated by the Court) prior to the
`
`initial disclosure to a proposed expert of any confidential information submitted in accordance
`
`with paragraph 2, the party proposing to use such expert shall submit in writing the name of such
`
`proposed expert and his or her educational and detailed employment history to the opposing party.
`
`If the opposing party objects to the disclosure of such confidential business information to such
`
`proposed expert as inconsistent with the language or intent of this order or on other grounds, it
`
`shall notify the recipient in writing of its objection and the grounds therefore prior to the initial
`
`disclosure. If the dispute is not resolved on an informal basis within ten days of receipt of such
`
`notice of objections, the opposing party may file a motion with the Court seeking to block the
`
`proposed expert’s access to the confidential information. During the pendency of the motion, the
`
`expert shall not have access to the disputed information. If the non-movant prevails on the motion,
`
`the moving party shall pay to the non-movant all reasonable fees and expenses associated with
`
`opposing the motion. In the event of a mixed result, the Court may fairly apportion fees and
`
`expenses.
`
`10. If confidential business information submitted in accordance with paragraph 2 is
`
`disclosed to any person other than in the manner authorized by this protective order, the party
`
`responsible for the disclosure must immediately bring all pertinent facts relating to such disclosure
`
`4847-7508-1399.2
`
`4
`
`

`

`Case 1:19-cv-11586-IT Document 58-1 Filed 03/31/20 Page 6 of 18
`
`
`
`to the attention of the party that designated the information as confidential, and make every effort
`
`to prevent further disclosure by it or by the person who was the recipient of such information.
`
`11. If any confidential business information which is supplied in accordance with
`
`paragraph 2 above is supplied by a nonparty to this case, such a nonparty shall be considered a
`
`“party” as that term is used in the context of this order. Each nonparty party shall be provided a
`
`copy of this order by the party seeking information from said party.
`
`12. Source Code. A supplier may designate documents, information, or things that
`
`constitute or contain non-public Source Code of the supplier or of any non-party whose documents
`
`or information a supplier is permitted to produce in this case as “CONFIDENTIAL SOURCE
`
`CODE–ATTORNEYS’ EYES ONLY INFORMATION.”
`
`A. “Source Code” shall mean source code, object code (i.e., computer instructions
`
`and data definitions expressed in a form suitable for input to an assembler, compiler, or
`
`other translator), microcode, register transfer language (“RTL”), firmware, and hardware
`
`description language (“HDL”), as well as any and all programmer notes, annotations, and
`
`other comments of any type related thereto and accompanying the code. For avoidance of
`
`doubt, this includes source files, make files, intermediate output files, executable files,
`
`header files, resource files, library files, module definition files, map files, object files,
`
`linker files, browse info files, and debug files.
`
`B. Materials designated as CONFIDENTIAL SOURCE CODE– ATTORNEYS’
`
`EYES ONLY INFORMATION shall only be reviewable by SOURCE CODE
`
`QUALIFIED PERSONS and shall not be disclosed to anyone except SOURCE CODE
`
`QUALIFIED PERSONS. SOURCE CODE QUALIFIED PERSONS include the
`5
`
`4847-7508-1399.2
`
`

`

`Case 1:19-cv-11586-IT Document 58-1 Filed 03/31/20 Page 7 of 18
`
`
`
`following: (1) outside litigation counsel who have filed an appearance in this matter, and
`
`their support staff assisting such counsel who are necessarily incident to this litigation; (2)
`
`personnel at document duplication, coding, imaging or scanning service establishments
`
`retained by, but not regularly employed by, outside litigation counsel as necessarily
`
`incident to the litigation; (3) personnel at interpretation/translation service establishments
`
`retained by, but not regularly employed by, outside litigation counsel as necessarily
`
`incident to the litigation, including without limitation oral interpreters and document
`
`translators; (4) court reporters, stenographers, and videographers transcribing or recording
`
`testimony at depositions, hearings or trial, who have signed an acknowledgment to be
`
`bound by the Protective Order in this case; and (5) qualified experts (whether testifying
`
`experts or non-testifying consultants) in this case (under paragraph 9 and paragraph 12(C)
`
`of the Protective Order in this case). Nothing in this paragraph shall prevent a supplier from
`
`disclosing its own Source Code to the supplier’s own employees or qualified experts.
`
`Materials designated as CONFIDENTIAL SOURCE CODE–ATTORNEYS’ EYES
`
`ONLY INFORMATION shall not be disclosed to In-House Counsel of a receiving party
`
`or to any other employee of a receiving party.
`
`C. Consistent with paragraph 9 of the Protective Order, qualified experts may
`
`review CONFIDENTIAL
`
`SOURCE CODE–ATTORNEYS’ EYES ONLY
`
`INFORMATION only after the receiving party complies with the provisions of paragraph
`
`9 of this Protective Order for the qualified expert additionally indicating that the proposed
`
`expert will receive CONFIDENTIAL SOURCE CODE-ATTORNEYS’ EYES ONLY
`
`INFORMATION.
`
`D. Source Code shall be provided with the following additional protections:
`6
`
`4847-7508-1399.2
`
`

`

`Case 1:19-cv-11586-IT Document 58-1 Filed 03/31/20 Page 8 of 18
`
`
`
`(i) Nothing in this Protective Order shall obligate the parties to produce any
`
`Source Code, nor act as an admission that any particular Source Code is
`
`discoverable.
`
`(ii) Access to Source Code will be given only to SOURCE CODE
`
`QUALIFIED PERSONS and, at depositions, hearings and trial, to witnesses who
`
`would otherwise be permitted access to such Source Code including supplier’s
`
`experts.
`
`(iii) Access to Source Code shall be provided on no more than two “stand-
`
`alone” computer(s) (i.e., the computer(s) may not be linked to any network,
`
`including a local area network (“LAN”), an intranet, or the Internet, and may not
`
`be connected to any printer or storage device other than the internal hard disk drive
`
`of the computer).. The stand-alone computer(s) shall be kept in a secure location at
`
`the offices of the supplier’s outside litigation counsel or at such other location as
`
`the supplier and receiving party mutually agree. If the supplier objects to a
`
`particular location for the review of source code, the supplier and receiving party
`
`agree to meet and confer in good faith regarding such objection and present the
`
`dispute to the Court if they are not able to reach agreement The stand-alone secure
`
`computer(s) may be password protected and shall have the Source Code stored on
`
`a hard drive contained inside the computer(s). The supplier shall produce Source
`
`Code in computer searchable format on the stand-alone computer(s) which shall
`
`have standard operating-system-provided tools provided by the receiving party at
`
`least three (3) days before review, such as findstr, grep, diff, AWK, cscript,
`
`command line access, or other agreed upon tools such as SciTools, Understand,
`7
`
`4847-7508-1399.2
`
`

`

`Case 1:19-cv-11586-IT Document 58-1 Filed 03/31/20 Page 9 of 18
`
`
`
`PowerGrep, Apple XCode, Microsoft Visual Studio, dtSearch, WinMerge, Sigasi,
`
`Ctgwin, and shall have standard text editors for printing such as Notepad++,
`
`TextWrangler, EditPad and the like. The standalone computer(s) shall, at the
`
`receiving party’s request, include reasonable analysis tools and translation software
`
`appropriate for the type of Source Code and language of any comments. The
`
`receiving party shall be responsible for providing the tools, licenses to the tools
`
`and/or software that it wishes to use so that the supplier may install such tools and
`
`software on the stand-alone computer. To the extent that such tools or software
`
`record local working files or other records reflecting the work performed by the
`
`receiving party, such files and records shall not be reviewed, altered, or deleted by
`
`the supplier. If the supplier objects to particular software tools or software proposed
`
`by the receiving party, the supplier and receiving party agree to meet and confer
`
`regarding such objection and to present the dispute to the Court if they are not able
`
`to reach agreement.
`
`(iv) The receiving party shall provide at least two (2) business days’ notice
`
`to access the source code and shall only have access to the standalone secure
`
`computer(s) during business hours, which for purposes of this paragraph shall be
`
`9:00 a.m. through 6:00 p.m. local time at the reviewing location. The parties are to
`
`cooperate in good faith such that maintaining the Source Code at the offices of the
`
`supplier’s outside litigation counsel shall not unreasonably hinder the receiving
`
`party’s ability to efficiently conduct the prosecution or defense of this case. It is
`
`expected that access to the Source Code shall be provided at the site of any
`
`deposition, hearing or trial. Proper identification of all SOURCE CODE
`
`4847-7508-1399.2
`
`8
`
`

`

`Case 1:19-cv-11586-IT Document 58-1 Filed 03/31/20 Page 10 of 18
`
`
`
`QUALIFIED PERSONS shall be provided prior to any access to the stand-alone
`
`secure computer.
`
`(v) All SOURCE CODE QUALIFIED PERSONS who will review Source
`
`Code on behalf of a receiving party shall be identified in writing to the supplier at
`
`least two (2) business days in advance of the first time that such person reviews
`
`such Source Code. Such identification shall be in addition to any disclosure
`
`required under paragraphs 12(B) and 12(C) of this Protective Order. The supplier
`
`shall provide these individuals with information explaining how to start, log on to,
`
`and operate the stand-alone computer in order to access the produced Source Code
`
`on the stand-alone secure computer(s). For subsequent reviews by SOURCE CODE
`
`QUALIFIED PERSONS, the receiving party shall give at least one business day
`
`(and at least 24 hours’) notice to the supplier of such review. To the extent that the
`
`receiving party wishes to continue a source code review from one day to the next,
`
`the receiving party shall notify the supplier by 5:00 p.m. local time on the day of
`
`the source code review..
`
`(vi) No person other than the supplier may alter, dismantle, disassemble or
`
`modify the stand-alone computer(s) in any way, or attempt to circumvent any
`
`security feature of the computer(s).
`
`(vii) No copies shall be made of Source Code, whether physical, electronic,
`
`or otherwise, other than volatile copies necessarily made in the normal course of
`
`accessing the Source Code on the stand-alone computer(s), except for:
`
`4847-7508-1399.2
`
`9
`
`

`

`Case 1:19-cv-11586-IT Document 58-1 Filed 03/31/20 Page 11 of 18
`
`
`
`(1) print outs of reasonable portions of the Source Code in
`
`accordance with the provisions of paragraphs 12(D)(ix)-(x) of this
`
`Protective Order; (2) notes and other analysis made of the Source Code, and
`
`(3) such other uses to which the parties may agree or that the Court may
`
`order. The receiving party shall not use any outside electronic device to
`
`copy, record, photograph, or otherwise reproduce Source Code.
`
`“Reasonable portions of the Source Code” shall be limited to the portions
`
`that are necessary for a qualified expert to discuss when explaining his or
`
`her opinions, and are subject to the limits in section (ix) below. Pages shall
`
`not be printed for the purpose of reviewing code in the first instance, as code
`
`review is to take place on the stand-alone computer(s). The supplier shall
`
`not unreasonably withhold approval and the parties shall meet and confer in
`
`good faith to resolve any disputes. The receiving party may take notes on a
`
`non-networked laptop, provided such device does not have a camera and
`
`does not have any network connectivity in the source code review room.
`
`The receiving party may not copy Source Code itself into the notes, but may
`
`take note of directories and filenames. The receiving party may not take
`
`such notes on the stand-alone computer(s) containing the Source Code, but
`
`rather only on paper or on the separate non-networked laptop. No
`
`networked devices or recordable media or recordable devices, including
`
`without limitation computers, tablets, smartphones, cellular telephones,
`
`peripheral equipment, cameras, sound recorders, CDs, DVDs, or drives of
`
`any kind, shall be permitted into the source code review room with the
`
`4847-7508-1399.2
`
`10
`
`

`

`Case 1:19-cv-11586-IT Document 58-1 Filed 03/31/20 Page 12 of 18
`
`
`
`stand-alone computer(s). Any notes taken regarding Source Code, whether
`
`on paper or electronically, shall be treated as CONFIDENTIAL SOURCE
`
`CODE– ATTORNEYS’ EYES ONLY INFORMATION under this
`
`Protective Order. The supplier may exercise personal supervision from
`
`outside the review room over the receiving party when the receiving party
`
`is in the Source Code review room. Such supervision, however, shall not
`
`entail review of any work product generated by the receiving party, e.g.,
`
`monitoring the screen of the stand-alone computer, monitoring any surface
`
`reflecting any notes or work product of the receiving party, or monitoring
`
`the key strokes of the receiving party. There will be no video supervision
`
`by any supplier.
`
`(viii) Nothing may be removed from the stand-alone computer, either by the
`
`receiving party or at the request of the receiving party, except for (1) print outsof
`
`reasonable portions of the Source Code in accordance with the provisions of
`
`paragraphs 12(C)(ix)-(x) of this Protective Order; and (2) such other uses to which
`
`the parties may agree or that the Court may order.
`
`(ix) At the request of the receiving party, the supplier shall within three (3)
`
`business days provide one (1) hard copy print out of the specific lines, pages, or
`
`files of the Source Code that the receiving party believes in good faith are necessary
`
`for its qualified expert to discuss when explaining his or her opinions regarding a
`
`relevant feature of an accused or alleged domestic industry product. If the supplier
`
`objects in any manner to the production of the requested source code (e.g., the
`
`request is too voluminous), it shall state its objection within the allotted two (2)
`11
`
`4847-7508-1399.2
`
`

`

`Case 1:19-cv-11586-IT Document 58-1 Filed 03/31/20 Page 13 of 18
`
`
`
`business days pursuant to this paragraph. Any printed portion that consists of more
`
`than twenty-five (25) pages of a continuous block of Source Code shall be
`
`presumed to be excessive. Without permission by the supplier or leave from the
`
`Court, the receiving party may request printed copies of no more than five hundred
`
`(500) pages of total Source Code. In the event of a dispute, the parties will meet
`
`and confer within five (5) business days of the objection being raised, and if they
`
`cannot resolve it the parties will raise it with the Court.
`
`(x) Hard copy print outs of Source Code shall be provided on Bates
`
`numbered and watermarked or colored paper clearly labeled CONFIDENTIAL
`
`SOURCE CODE–ATTORNEYS’ EYES ONLY INFORMATION on each page
`
`and shall be maintained by the receiving party's outside litigation counsel or
`
`SOURCE CODE QUALIFIED PERSONS in a secured locked area. The receiving
`
`party may also temporarily keep the print outs at: (1) the Court for any
`
`proceedings(s) relating to the Source Code, for the dates associated with the
`
`proceeding(s); (2) the sites where any deposition(s) relating to the Source Code are
`
`taken, for the dates associated with the deposition(s); and (3) any intermediate
`
`location reasonably necessary to transport the print outs (e.g., a hotel prior to a
`
`Court proceeding or deposition). For avoidance of doubt, an access-restricted
`
`location within the facilities of outside litigation counsel or a qualified expert, such
`
`as a conference room within an access restricted office or a locked drawer or
`
`cabinet, shall constitute a secured locked area. The receiving party shall exercise
`
`due care in maintaining the security of the print outs at these temporary locations.
`
`No further hard copies of such Source Code shall be made and the Source Code
`
`4847-7508-1399.2
`
`12
`
`

`

`Case 1:19-cv-11586-IT Document 58-1 Filed 03/31/20 Page 14 of 18
`
`
`
`shall not be transferred into any electronic format or onto any electronic media
`
`except that:
`
`1. The receiving party is permitted to make up to three (3) additional
`
`hard copies for use at a deposition. One hard copy of the source code may
`
`be marked as an exhibit for the deposition, and then maintained by counsel
`
`for the party presenting the exhibit during the deposition in a secured locked
`
`area. All other copies shall be destroyed immediately after the deposition is
`
`concluded.
`
`2. The receiving party is permitted to make up to five (5) additional
`
`hard copies for the Court in connection with a filing, hearing, or trial, and
`
`of only the specific pages directly relevant to and necessary for deciding the
`
`issue for which the portions of the Source Code are being filed or offered.
`
`To the extent portions of Source Code are quoted in a filing, either (1) the
`
`entire document will be stamped and treated as CONFIDENTIAL
`
`SOURCE CODE–ATTORNEYS’ EYES ONLY INFORMATION; or (2)
`
`those pages containing quoted Source Code will be separately stamped and
`
`treated as CONFIDENTIAL SOURCE CODE– ATTORNEYS’ EYES
`
`ONLY INFORMATION.
`
`3. Electronic copies of Source Code may be made to be included in
`
`documents which, pursuant to the Court’s rules, procedures and order(s),
`
`may be filed or served electronically. Only the necessary amount of
`
`electronic copies to effectuate such filing or service may be stored on any
`
`4847-7508-1399.2
`
`13
`
`

`

`Case 1:19-cv-11586-IT Document 58-1 Filed 03/31/20 Page 15 of 18
`
`
`
`receiving party server, hard drive, thumb drive, or other electronic storage
`
`device at any given time. After any such electronic filing or service, the
`
`receiving party may maintain reasonable copies of such filings, but shall
`
`delete all other electronic copies of Source Code from all receiving party
`
`electronic storage devices.
`
`4.
`
`5. The supplier shall, on request, make a searchable electronic copy
`
`of the Source Code available on a stand-alone computer during depositions
`
`of witnesses who would otherwise be permitted access to such Source Code.
`
`The receiving party shall make such request at the time of the notice for
`
`deposition.
`
`(xi) Nothing in this Protective Order shall be construed to limit how a
`
`supplier may maintain material designated as CONFIDENTIAL SOURCE CODE–
`
`ATTORNEYS’ EYES ONLY INFORMATION.
`
`(xii) Outside litigation counsel for the receiving party with custody of
`
`CONFIDENTIAL
`
`SOURCE
`
`CODE–ATTORNEYS’
`
`EYES
`
`ONLY
`
`INFORMATION shall maintain a source code log containing the following
`
`information: (1) the identity of each person granted access to the CONFIDENTIAL
`
`SOURCE CODE–ATTORNEYS’ EYES ONLY INFORMATION; and (2) the first
`
`date on which such access was granted. Outside litigation counsel for the receiving
`
`party will produce, upon request, each such source code log to the supplier within
`
`twenty (20) days of the final disposition of the case.
`14
`
`4847-7508-1399.2
`
`

`

`Case 1:19-cv-11586-IT Document 58-1 Filed 03/31/20 Page 16 of 18
`
`
`
`13.
`
`Access for Designated In-House Counsel and Prosecution Bar. The term
`
`“Designated In-House Counsel” means an in-house attorney who has met the conditions
`
`specified in this paragraph 13 for access to certain information designated under this Protective
`
`Order. A party may designate no more than three (3) in-house counsel in total under this
`
`paragraph 13.
`
`(b)
`
`Each person designated as a Designated In-House Counsel must read the
`
`Protective Order including any Addenda thereto, and must agree, by letter filed served on
`
`all parties: (i) to be bound by the terms thereof; (ii) not to reveal information designated
`
`under the Protective Order to anyone other than another person properly designated under
`
`this paragraph or under paragraph 3; (iii) to utilize such information solely for purposes
`
`of this dispute; (iv) to the acknowledgement printed at paragraph 4 of this Protective
`
`Order, which acknowledgement shall be printed in the letter; and (v) to be bound by the
`
`Prosecution Bar in paragraph 14 below.
`
`(d)
`
`An in-house counsel who has been designated as a Designated In-House
`
`Counsel, and whose letter of agreement has been served in accordance with section (b)
`
`above, may thereafter have access to materials designated under this Protective Order
`
`except that:
`
`(1)
`
`No Designated In-House Counsel shall have access to any
`
`materials designated “CONFIDENTIAL SOURCE CODE–ATTORNEYS’ EYES
`
`ONLY INFORMATION” or otherwise designated as containing Source Code.
`
` (e) Nothing in this paragraph 13 shall be construed to prevent any
`
`designating party from agreeing, if it so desires, to share information it has
`
`designated under this Protective Order with any other party or person.
`
`4847-7508-1399.2
`
`15
`
`

`

`Case 1:19-cv-11586-IT Document 58-1 Filed 03/31/20 Page 17 of 18
`
`14.
`
`Prosecution Bar
`
`(a)
`
`Any Designated In-House Counsel of Complainants who personally
`
`receives and reviews any material designated under this Protective Order, shall not
`
`participate in the preparation or prosecution of any patent, patent application,
`
`reexamination petition, or reissue application, or the drafting or revising of patent claims,
`
`directed to wearable monitoring devices, such as activity trackers and fitness trackers,
`
`including health and activity monitoring devices, that may be worn on the wrist like a
`
`watch or bracelet or attached to clothing, from the time of receipt of such material
`
`through and including the first to occur of the following: (i) one (1) year following the
`
`expiration of the last patent being asserted in this case; (ii) one (1) year following the
`
`complete resolution of this case through entry of a final non-appealable judgment or
`
`order for which appeal has been exhausted; or (iii) one ( 1) year following the complete
`
`settlement of all claims against all the parties in this action.
`
`(b) Nothing in this Prosecution Bar shall prohibit any Designated In-House
`
`Counsel from participating in any post-grant proceedings before the United States Patent
`
`and Trademark Office (or any similar agency of a foreign government), including but not
`
`limited to inter partes review, covered business method review, post-grant review, or ex
`
`parte reexamination, to the extent that such person’s participation does not involve the
`
`drafting or amending of patent claims for wearable monitoring devices, such as activity
`
`trackers and fitness trackers, including health and activity monitoring devices, that may
`
`be worn on the wrist like a watch or bracelet or attached to clothing.
`
`
`
`16
`
`
`
`
`
`
`
`4847-7508-1399.2
`
`

`

`Case 1:19-cv-11586-IT Document 58-1 Filed 03/31/20 Page 18 of 18
`
`
`
`Attachment A
`
`NONDISCLOSURE AGREEMENT
`
`I, ___________________ , do solemnly swear or affirm that I will not divulge any
`
`information communicated to me in any confidential portion of the present Philips North
`
`America, Inc v. Fitbit LLC litigation pending in the District of Massachusetts, Case. No. C.A.
`
`No. 1:19-cv-11586, except as permitted in the protective order issued in this case. I will not
`
`directly or indirectly use, or allow the use of such information for any purpose other than that
`
`directly associated with my official duties in this case.
`
`Further, I will not by direct action, discussion, recommendation, or suggestion to any
`
`person reveal the nature or content of any information communicated during any confidential
`
`portion of this proceeding or hearing in this case. I also affirm that I do not hold any position or
`
`official relationship with any of the participants in this case aside from the role I have been
`
`engaged to perform in this litigation.
`
`I am aware that the unauthorized use or conveyance of information as specified above is
`
`a violation of Court’s protective order, and sanctionable as contempt.
`
`Signed: ___________________________
`
`Printed Name: ______________________
`
`Dated: ____________________________
`
`Firm or affiliation: __________________
`
`
`
`4847-7508-1399.2
`
`17
`
`