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`Case 1:19-cv-11586-IT Document 59-2 Filed 04/02/20 Page 2 of 17
`Case 1:19-cv-11586-IT Document 59-2 Filed 04/02/20 Page 2 of 17
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`by a party to contain or constitute confidential business information shall be so designated by such
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`party in writing, or orally at a deposition, conference or hearing. Documents shall be clearly and
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`prominently marked on their face with the legend: “CONFIDENTIAL” or a comparable notice.
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`Such information, whether submitted in writing or in oral testimony, shall be treated in accordance
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`with the terms of this protective order. No party shall redact confidential information in a
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`document; rather, the disclosing party should simply label the document as Confidential, and if it
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`becomes relevant, will inform the receiving party subsequently of any particular portion of the
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`document deemed confidential.
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`3. In the absence of written permission from the disclosing party or an order by the Court,
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`any confidential documents or business information submitted in accordance with the provisions
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`of paragraph 2 above shall not be disclosed to any person other than: (i) outside counsel for parties
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`to this action, including necessary secretarial and support personnel assisting such counsel; (ii)
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`qualified persons taking testimony involving such documents or information and necessary
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`stenographic and clerical personnel thereof; (iii) technical experts and their staff who are employed
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`for the purposes of this litigation (unless they are otherwise employed by, consultants to, or
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`otherwise affiliated with a non-governmental party, or are employees of any domestic or foreign
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`manufacturer, wholesaler, retailer, or distributor of the products, devices or component parts that
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`are the subject of this action); (iv) the Court and its staff.
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`4. Confidential business information submitted in accordance with the provisions of
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`paragraph 2 above shall not be made available to any person designated in paragraph 3(iii) unless
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`he or she shall have first read this order and shall have signed the undertaking at Attachment A.
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`However, Attorneys who have filed an appearance in this matter need not sign the undertaking at
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`4847-7508-1399.2
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`Case 1:19-cv-11586-IT Document 59-2 Filed 04/02/20 Page 3 of 17
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`Attachment A, but shall nevertheless be subject to, and bound by, the provisions of this Protective
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`Order.
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`5. If the Court orders, or the disclosing party agrees, that access to, or dissemination of
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`information submitted as confidential business information shall be made to persons not included
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`in paragraph 3 above, such matter shall only be accessible to, or disseminated to, such persons
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`based upon the conditions pertaining to, and obligations arising from this order, and such persons
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`shall be considered subject to it, unless the Court finds that the information is not confidential
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`business information as defined in paragraph 1 hereof.
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`itial business information submitted to the Cou
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`7. The restrictions upon, and obligations accruing to, persons who become subject to this
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`order shall not apply to any information submitted in accordance with paragraph 2 above to which
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`the person asserting the confidential status thereof agrees in writing, or the Court rules, after an
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`opportunity for hearing, was publicly known at the time it was supplied to the receiving party or
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`has since become publicly known through no fault of the receiving party.
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`8. If a party who receives materials or information that has been designated as confidential
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`and submitted in accordance with paragraph 2 disagrees with respect to such a designation, in full
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`or in part, it shall notify the disclosing party in writing, and they will thereupon confer as to the
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`status of the subject information proffered within the context of this order. If the receiving party
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`and the disclosing party are unable to concur upon the status of the subject information submitted
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`as confidential business information within ten days from the date of notification of such
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`disagreement, the party challenging the confidentiality designation may file a motion with the
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`4847-7508-1399.2
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`Case 1:19-cv-11586-IT Document 59-2 Filed 04/02/20 Page 4 of 17
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`Court seeking to remove the confidentiality designation. If such motion is granted, the non-movant
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`shall compensate the movant for the reasonable expenses and fees associated with the motion. In
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`the event of a mixed result, the Court may fairly apportion fees and expenses. The Court may sua
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`sponte question the designation of the confidential status of any information and, after opportunity
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`for hearing, may remove the confidentiality designation.
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`9. No less than 10 days (or any other period of time designated by the Court) prior to the
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`initial disclosure'to a proposed expert of any confidential information submitted in accordance
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`with paragraph 2, the party proposing to use such expert shall submit in writing the name of such
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`proposed expert and his or her educational and detailed employment history to the opposing party.
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`If the opposing party objects to the disclosure of such confidential business information to such
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`proposed expert as inconsistent with the language or intent of this order or on other grounds, it
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`shall notify the recipient in writing of its objection and the grounds therefore prior to the initial
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`disclosure. If the dispute is not resolved on an informal basis Within ten days of receipt of such
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`notice of objections, the opposing party may file a motion with the Court seeking to block the
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`proposed expert’s access to the confidential information. During the pendency of the motion, the
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`expert shall not have access to the disputed information. If the non-movant prevails on the motion,
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`the moving party shall pay to the non-movant all reasonable fees and expenses associated with
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`opposing the motion.
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`In the event of a mixed result, the Court may fairly apportion fees and
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`expenses.
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`10. If confidential business information submitted in accordance with paragraph 2 is
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`disclosed to any person other than in the manner authorized by this protective order, the party
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`responsible for the disclosure must immediately bring all pertinent facts relating to such disclosure
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`Case 1:19-cv-11586-IT Document 59-2 Filed 04/02/20 Page 5 of 17
`Case 1:19-cv-11586-IT Document 59-2 Filed 04/02/20 Page 5 of 17
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`to the attention of the party that designated the information as confidential, and make every effort
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`to prevent fitrther disclosure by it or by the person who was the recipient of such information.
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`11. If any confidential business information which is supplied in accordance with
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`paragraph 2 above is supplied by a nonparty to this case, such a nonparty shall be considered a
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`“party” as that term is used in the context of this order. Each nonparty party shall be provided a
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`copy of this order by the party seeking information from said party.
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`12. Source Code. A supplier may designate documents,
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`information, or things that
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`constitute or contain non-public Source Code of the supplier or of any non-party Whose documents
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`or information a supplier is permitted to produce in this case as “CONFIDENTIAL SOURCE
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`CODE—ATTORNEYS’ EYES ONLY INFORMATION.”
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`A. “Source Code” shall mean source code, object code (i.e., computer instructions
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`and data definitions expressed in a form suitable for input to an assembler, compiler, or
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`other translator), microcode, register transfer language (“RTL”), firmware, and hardware
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`description language (“HDL”), as well as any and all programmer notes, annotations, and
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`other comments of any type related thereto and accompanying the code. For avoidance of
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`doubt, this includes source files, make files, intermediate output files, executable files,
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`header files, resource files, library files, module definition files, map files, object files,
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`linker files, browse info files, and debug files.
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`B. Materials designated as CONFIDENTIAL SOURCE CODE— ATTORNEYS’
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`EYES ONLY INFORMATION shall only be reviewable by SOURCE CODE
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`QUALIFIED PERSONS and shall not be disclosed to anyone except SOURCE CODE
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`QUALIFIED PERSONS. SOURCE CODE QUALIFIED PERSONS include the
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`Case 1:19-cv-11586-IT Document 59-2 Filed 04/02/20 Page 6 of 17
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`following: (1) outside litigation counsel who have filed an appearance in this matter, and
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`their support staff assisting such counsel who are necessarily incident to this litigation; (2)
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`personnel at document duplication, coding, imaging or scanning service establishments
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`retained by, but not regularly employed by, outside litigation counsel as necessarily
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`incident to the litigation; (3) personnel at interpretation/translation service establishments
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`retained by, but not regularly employed by, outside litigation counsel as necessarily
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`incident to the litigation,
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`including without limitation oral interpreters and document
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`translators; (4) court reporters, stenographers, and videographers transcribing or recording
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`testimony at depositions,W who have signed an acknowledgment to be
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`bound by the Protective Order in this case; and (5) qualified experts (whether testifying
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`experts or non-testifying consultants) in this case (under paragraph 9 and paragraph 12(C)
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`of the Protective Order in this case). Nothing in this paragraph shall prevent a supplier from
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`disclosing its own Source Code to the supplier’s own employees or qualified experts.
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`Materials designated as CONFIDENTIAL SOURCE CODE—ATTORNEYS’ EYES
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`ONLY INFORMATION shall not be disclosed to In—House Counsel of a receiving party
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`or to any other employee of a receiving party.
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`C. Consistent with paragraph 9 of the Protective Order, qualified experts may
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`review
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`CONFIDENTIAL
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`SOURCE
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`CODE—ATTORNEYS’
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`EYES
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`ONLY
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`INFORMATION only after the receiving party complies with the provisions of paragraph
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`9 of this Protective Order for the qualified expert additionally indicating that the proposed
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`expert will receive CONFIDENTIAL SOURCE CODE-ATTORNEYS’ EYES ONLY
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`INFORMATION.
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`D. Source Code shall be provided with the following additional protections:
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`Case 1:19-cv-11586-IT Document 59-2 Filed 04/02/20 Page 7 of 17
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`(i) Nothing in this Protective Order shall obligate the parties to produce any
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`Source Code, nor act as an admission that any particular Source Code is
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`discoverable.
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`(ii) Access to Source Code will be given only to SOURCE CODE
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`QUALIFIED PERSONS and, at depositions, hearings and trial, to witnesses who
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`would otherwise be permitted access to such Source Code including supplier’s
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`experts.
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`(iii) Access to Source Code shall be provided on no more than two “stand-
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`alone” computer(s) (i.e.,
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`the computer(s) may not be linked to any network,
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`including a local area network (“LAN”), an intranet, or the Internet, and may not
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`be connected to any printer or storage device other than the internal hard disk drive
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`of the computer).. The stand-alone computer(s) shall be kept in a secure location at
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`the offices of the supplier’s outside litigation counsel or at such other location as
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`the supplier and receiving party mutually agree. If the supplier objects to a
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`particular location for the review of source code, the supplier and receiving party
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`agree to meet and confer in good faith regarding such objection and present the
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`dispute to the Court if they are not able to reach agreement The stand-alone secure
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`computer(s) may be password protected and shall have the Source Code stored on
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`a hard drive contained inside the computer(s). The supplier shall produce Source
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`Code in computer searchable format on the stand-alone computer(s) which shall
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`have standard operating-system-provided tools provided by the receiving party at
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`least three (3) days before review, such as findstr, grep, diff, AWK, cscript,
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`command line access, or other agreed upon tools such as SciTools, Understand,
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`PowerGrep, Apple XCode, Microsoft Visual Studio, dtSearch, WinMerge, Sigasi,
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`Ctgwin, and shall have standard text editors for printing such as Notepad++,
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`TextWrangler, EditPad and the like. The standalone computer(s) shall, at the
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`receiving party’s request, include reasonable analysis tools and translation software
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`appropriate for the type of Source Code and language of any comments. The
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`receiving party shall be responsible for providing the tools, licenses to the tools
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`and/or software that it wishes to use so that the supplier may install such tools and
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`software on the stand-alone computer. To the extent that such tools or software
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`record local working files or other records reflecting the work performed by the
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`receiving party, such files and records shall not be reviewed, altered, or deleted by
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`the supplier. If the supplier objects to particular software tools or software proposed
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`by the receiving party, the supplier and receiving party agree to meet and confer
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`regarding such objection and to present the dispute to the Court if they are not able
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`to reach agreement.
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`(iv) The receiving party shall provide at least two (2) business days’ notice
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`to access the source code and shall only have access to the standalone secure
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`computer(s) during business hours, which for purposes of this paragraph shall be
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`9:00 am. through 6:00 pm. local time at the reviewing location. The parties are to
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`cooperate in good faith such that maintaining the Source Code at the offices of the
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`supplier’s outside litigation counsel shall not unreasonably hinder the receiving
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`party’s ability to efficiently conduct the prosecution or defense of this case. It is
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`expected that access to the Source Code shall be provided at the site of any
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`deposition, hearing or
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`trial. Proper
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`identification of all SOURCE CODE
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`4847-7508-1399.2
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`QUALIFIED PERSONS shall be provided prior to any access to the stand—alone
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`secure computer.
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`(V) All SOURCE CODE QUALIFIED PERSONS who will review Source
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`Code on behalf of a receiving party shall be identified in writing to the supplier at
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`least two (2) business days in advance of the first time that such person reviews
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`such Source Code. Such identification shall be in addition to any disclosure
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`required under paragraphs 12(B) and 12(C) of this Protective Order. The supplier
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`shall provide these individuals with information explaining how to start, log on to,
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`and operate the stand-alone computer in order to access the produced Source Code
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`on the stand-alone secure computer(s). For subsequent reviews by SOURCE CODE
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`QUALIFIED PERSONS, the receiving party shall give at least one business day
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`(and at least 24 hours’) notice to the supplier of such review. To the extent that the
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`receiving party wishes to continue a source code review from one day to the next,
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`the receiving party shall notify the supplier by 5:00 pm. local time on the day of
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`the source code review..
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`(vi) No person other than the supplier may alter, dismantle, disassemble or
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`modify the stand-alone computer(s) in any way, or attempt to circumvent any
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`security feature of the computer(s).
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`(vii) No copies shall be made of Source Code, whether physical, electronic,
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`or otherwise, other than volatile copies necessarily made in the normal course of
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`accessing the Source Code on the stand-alone computer(s), except for:
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`(1) print outs of reasonable portions of the Source Code in
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`accordance with the provisions of paragraphs 12(D)(ix)-(x) of this
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`Protective Order; (2) notes and other analysis made of the Source Code, and
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`(3) such other uses to which the parties may agree or that the Court may
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`order. The receiving party shall not use any outside electronic device to
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`copy,
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`record,
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`photograph,
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`or otherwise
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`reproduce Source Code.
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`“Reasonable portions of the Source Code” shall be limited to the portions
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`that are necessary for a qualified expert to discuss when explaining his or
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`her opinions, and are subject to the limits in section (ix) below. Pages shall
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`not be printed for the purpose ofreviewing code in the first instance, as code
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`review is to take place on the stand-alone computer(s). The supplier shall
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`not unreasonably withhold approval and the parties shall meet and confer in
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`good faith to resolve any disputes. The receiving party may take notes on a
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`non-networked laptop, provided such device does not have a camera and
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`does not have any network connectivity in the source code review room.
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`The receiving party may not copy Source Code itself into the notes, but may
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`take note of directories and filenames. The receiving party may not take
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`such notes on the stand-alone computer(s) containing the Source Code, but
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`rather only on paper or on the separate non-networked laptop. No
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`networked devices or recordable media or recordable devices, including
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`without limitation computers, tablets, smartphones, cellular telephones,
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`peripheral equipment, cameras, sound recorders, CDs, DVDs, or drives of
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`any kind, shall be permitted into the source code review room with the
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`4847-7508-1399.2
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`Case 1:19-cv-11586-IT Document 59-2 Filed 04/02/20 Page 11 of 17
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`stand-alone computer(s). Any notes taken regarding Source Code, whether
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`on paper or electronically, shall be treated as CONFIDENTIAL SOURCE
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`CODE— ATTORNEYS’ EYES ONLY INFORMATION under
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`this
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`Protective Order. The supplier may exercise personal supervision from
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`outside the review room over the receiving party when the receiving party
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`is in the Source Code review room. Such supervision, however, shall not
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`entail review of any work product generated by the receiving party, e.g.,
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`monitoring the screen of the stand—alone computer, monitoring any surface
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`reflecting any notes or work product of the receiving party, or monitoring
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`the key strokes of the receiving party. There will be no video supervision
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`by any supplier.
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`(viii) Nothing may be removed from the stand—alone computer, either by the
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`receiving party or at the request of the receiving party, except for (1) print outsof
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`reasonable portions of the Source Code in accordance with the provisions of
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`paragraphs 12(C)(ix)-(x) of this Protective Order; and (2) such other uses to which
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`the parties may agree or that the Court may order.
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`(ix) At the request of the receiving party, the supplier shall within three (3)
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`business days provide one (1) hard copy print out of the specific lines, pages, or
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`files of the Source Code that the receiving party believes in good faith are necessary
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`for its qualified expert to discuss when explaining his or her opinions regarding a
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`relevant feature of an accused or alleged domestic industry product. If the supplier
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`objects in any manner to the production of the requested source code (e.g., the
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`request is too voluminous), it shall state its objection within the allotted two (2)
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`4847-7508-1399.2
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