Case 1:23-cv-00324-ADA Document 39 Filed 09/18/23 Page 1 of 34
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
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`CARBYNE BIOMETRICS, LLC,
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`Plaintiff,
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`v.
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`APPLE INC.,
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`Defendant.
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`Civil Action No. 1:23-cv-00324-ADA
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`AGREED PROTECTIVE ORDER
`REGARDING THE DISCLOSURE AND USE OF DISCOVERY MATERIALS
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`Plaintiff Carbyne Biometrics, LLC (“Plaintiff”) and Defendant Apple Inc.
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`(“Defendant”) anticipate that documents, testimony, or information containing or reflecting
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`confidential, proprietary, trade secret, and/or commercially sensitive information are likely to
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`be disclosed or produced during the course of discovery, initial disclosures, and supplemental
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`disclosures in this case and request that the Court enter this Order setting forth the conditions
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`for treating, obtaining, and using such information.
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`Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the Court finds
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`good cause for the following Agreed Protective Order Regarding the Disclosure and Use of
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`Discovery Materials (“Order” or “Protective Order”).
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`1.
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`PURPOSES AND LIMITATIONS
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`(a)
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`Protected Material designated under the terms of this Protective Order shall
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`be used by a Receiving Party solely for this case and shall not be used directly or indirectly for any
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`other purpose whatsoever.
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`

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`Case 1:23-cv-00324-ADA Document 39 Filed 09/18/23 Page 2 of 34
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`(b)
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`The Parties acknowledge that this Order does not confer blanket protections
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`on all disclosures during discovery, or in the course of making initial or supplemental disclosures
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`under Rule 26(a). Designations under this Order shall be made with care and shall not be made
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`absent a good faith belief that the designated material satisfies the criteria set forth below. If it
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`comes to a Producing Party’s attention that designated material does not qualify for protection at
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`all or does not qualify for the level of protection initially asserted, the Producing Party must
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`promptly notify all other Parties that it is withdrawing or changing the designation.
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`2.
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`DEFINITIONS
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`(a)
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`“Discovery Material” means all items or information, including from any
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`non-party, regardless of the medium or manner generated, stored, or maintained (including, among
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`other things, testimony, transcripts, or tangible things) that are produced, disclosed, or generated
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`in connection with discovery or Rule 26(a) disclosures in this case.
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`(b)
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`“Outside Counsel” means (i) outside counsel who appear on the pleadings
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`as counsel for a Party and (ii) partners, associates, and staff of such counsel to whom it is
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`reasonably necessary to disclose the information for this litigation.
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`(c)
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`“Patents-in-suit” means U.S. Patent Nos. 9,972,010; 10,713,656;
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`11,526,886; 10,929,512; 11,475,105; 11,514,138, and any other patent asserted in this action, as
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`well as any related patents, patent applications, provisional patent applications, continuations,
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`and/or divisionals.
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`(d)
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`“Party” means any party to this case, including all of its officers, directors,
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`employees, consultants, retained experts, and outside counsel and their support staffs.
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`

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`Case 1:23-cv-00324-ADA Document 39 Filed 09/18/23 Page 3 of 34
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`(e)
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`“Producing Party” means any Party or non-party that discloses or produces
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`any Discovery Material in this case.
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`(f)
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`“Protected Material” means any Discovery Material that is designated as
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`“CONFIDENTIAL,” “CONFIDENTIAL - ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL
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`- OUTSIDE ATTORNEYS’ EYES ONLY - SOURCE CODE,” as provided for in this Order.
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`Protected Material shall not include: (i) advertising materials that have been actually published or
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`publicly disseminated; and (ii) materials that show on their face they have been disseminated to
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`the public.
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`(g)
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`“Receiving Party” means any Party who receives Discovery Material from
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`a Producing Party.
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`(h)
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`“Source Code” means computer code, scripts, assembly, binaries, object
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`code, source code listings (e.g., file names and path structure), descriptions of source code (e.g.,
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`descriptions of declarations, functions, and parameters), object code listings and descriptions of
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`object code, Hardware Description Language (HDL) or Register Transfer Level (RTL) files that
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`describe the hardware design of any ASIC or other chip, and Computer Aided Design (CAD) files
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`that describe the hardware design of any component.
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`3.
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`COMPUTATION OF TIME
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`The computation of any period of time prescribed or allowed by this Order shall
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`be governed by the provisions for computing time set forth in Federal Rules of Civil
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`Procedure 6.
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`4.
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`SCOPE
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`(a)
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`The protections conferred by this Order cover not only Discovery Material
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`governed by this Order as addressed herein, but also any information copied or extracted
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`Case 1:23-cv-00324-ADA Document 39 Filed 09/18/23 Page 4 of 34
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`therefrom, as well as all copies, excerpts, summaries, or compilations thereof, plus testimony,
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`conversations, or presentations by Parties or their counsel in court or in other settings that might
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`reveal Protected Material.
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`(b)
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`Nothing in this Protective Order shall prevent or restrict a Producing Party’s
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`own disclosure or use of its own Protected Material for any purpose, and nothing in this Order
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`shall preclude any Producing Party from showing its Protected Material to an individual who
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`prepared the Protected Material.
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`(c)
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`Nothing in this Order shall be construed to prejudice any Party’s right to
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`use any Protected Material in court or in any court filing with the consent of the Producing Party
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`or by order of the Court.
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`(d)
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`This Order is without prejudice to the right of any Party to seek further or
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`additional protection of any Discovery Material or to modify this Order in any way, including,
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`without limitation, an order that certain matter not be produced at all.
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`5.
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`DURATION
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`Even after the termination of this case, the confidentiality obligations imposed by
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`this Order shall remain in effect until a Producing Party agrees otherwise in writing or a court order
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`otherwise directs.
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`6.
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`ACCESS TO AND USE OF PROTECTED MATERIAL
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`(a)
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`Basic Principles. All Protected Material shall be used solely for this case
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`or any related appellate proceeding, and not for any other purpose whatsoever, including without
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`limitation any other litigation, patent prosecution or acquisition, patent reexamination or reissue
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`proceedings, or any business or competitive purpose or function. Protected Material shall not be
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`distributed, disclosed or made available to anyone except as expressly provided in this Order.
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`

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`(b)
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`Patent Prosecution Bar. Absent the written consent of the Producing Party,
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`any person on behalf of the Plaintiff who receives one or more items designated
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`“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL – ATTORNEYS’
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`EYES ONLY – SOURCE CODE” by a Defendant shall not be involved, directly or indirectly, in
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`any of the following activities: (i) advising on, consulting on, preparing, prosecuting, drafting,
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`editing, and/or amending of patent applications, specifications, claims, and/or responses to office
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`actions, or otherwise affecting the scope of claims in patents or patent applications relating to the
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`functionality, operation, and design of software, hardware, or methods relating to fraud reduction
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`or authentication in electronic transactions (generally or as described in any patent in suit), before
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`any foreign or domestic agency, including the United States Patent and Trademark Office; and (ii)
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`the acquisition of patents (including patent applications), or the rights to any such patents or patent
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`applications with the right to sublicense, relating to the functionality, operation, and design of
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`software, hardware, or methods relating to fraud reduction or authentication in electronic
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`transactions. These prohibitions are not intended to and shall not preclude counsel from
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`participating in proceedings or assisting in proceedings on behalf of a Party challenging or
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`defending the validity of any patent before a domestic or foreign tribunal (including but not limited
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`to, inter alia, a reissue proceeding, ex parte reexamination, inter partes reexamination, inter partes
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`review, post-grant review, or covered business method review) provided that they do not advise
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`on, consult on, prepare, draft, or edit any amendment to specifications or claims in or based on
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`those proceedings. These prohibitions shall begin when access to “CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY – SOURCE
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`CODE” materials are first received by the affected individual and shall end two (2) years after the
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`final resolution of this action, including all appeals.
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`

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`Case 1:23-cv-00324-ADA Document 39 Filed 09/18/23 Page 6 of 34
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`
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`(c)
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`Secure Storage, No Export. Protected Material must be stored and
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`maintained by a Receiving Party at a location in the United States and in a secure manner that
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`ensures that access is limited to the persons authorized under this Order. To ensure compliance
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`with applicable United States Export Administration Regulations, Protected Material may not be
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`exported outside the United States or released to any foreign national (even if within the United
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`States).
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`(d)
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`Legal Advice Based on Protected Material. Nothing in this Protective Order
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`shall be construed to prevent counsel from advising their clients with respect to this case based in
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`whole or in part upon Protected Materials, provided counsel does not disclose the Protected
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`Material itself except as provided in this Order.
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`(e)
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`Limitations. Nothing in this Order shall restrict in any way a Producing
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`Party’s use or disclosure of its own Protected Material. Nothing in this Order shall restrict in any
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`way the use or disclosure of Discovery Material by a Receiving Party: (i) that is or has become
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`publicly known through no fault of the Receiving Party; (ii) that is lawfully acquired by or known
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`to the Receiving Party independent of the Producing Party; (iii) previously produced, disclosed
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`and/or provided by the Producing Party to the Receiving Party or a non-party without an
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`obligation of confidentiality and not by inadvertence or mistake; (iv) with the consent of the
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`Producing Party; or (v) pursuant to order of the Court.
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`7.
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`DESIGNATING PROTECTED MATERIAL
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`(a)
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`Available Designations. Any Producing Party may designate Discovery
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`Material with any of the following designations, provided that it meets the requirements for such
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`designations as provided for herein: “CONFIDENTIAL,” “CONFIDENTIAL - ATTORNEYS’
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`Case 1:23-cv-00324-ADA Document 39 Filed 09/18/23 Page 7 of 34
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`EYES ONLY,” or “CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY - SOURCE
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`CODE.”
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`(b) Written Discovery and Documents and Tangible Things. Written
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`discovery, documents (which include “electronically stored information,” as that phrase is used in
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`Federal Rule of Procedure 34), and tangible things that meet the requirements for the
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`confidentiality designations listed in Paragraph 7(a) may be so designated by placing the
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`appropriate designation on every page of the written material prior to production. For digital files
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`being produced, the Producing Party may mark each viewable page or image with the appropriate
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`designation, and mark the medium, container, and/or communication in which the digital files were
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`contained. In the event that original documents are produced for inspection, the original
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`documents shall be presumed “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” during the
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`inspection and re-designated, as appropriate during the copying process.
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`(c)
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`Native Files. Where electronic files and documents are produced in native
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`electronic format, such electronic files and documents shall be designated for protection under this
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`Order by appending to the file names or designators information indicating whether the file
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`contains “CONFIDENTIAL,” “CONFIDENTIAL - ATTORNEYS’ EYES ONLY,” or
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`“CONFIDENTIAL - OUTSIDE ATTORNEYS’ EYES ONLY - SOURCE CODE,” material, or
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`shall use any other reasonable method for so designating Protected Materials produced in
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`electronic format. When electronic files or documents are printed for use at deposition, in a court
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`proceeding, or for provision in printed form to an expert or consultant pre-approved pursuant to
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`paragraph 12, the party printing the electronic files or documents shall affix a legend to the printed
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`document corresponding to the designation of the Designating Party and including the production
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`number and designation associated with the native file. No one shall seek to use in this litigation
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`a .tiff, .pdf or other image format version of a document produced in native file format without
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`first (1) providing a copy of the image format version to the Producing Party so that the Producing
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`Party can review the image to ensure that no information has been altered, and (2) obtaining the
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`consent of the Producing Party, which consent shall not be unreasonably withheld.
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`(d)
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`Depositions and Testimony. Parties or testifying persons or entities may
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`designate depositions and other testimony with the appropriate designation by indicating on the
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`record at the time the testimony is given or by sending written notice of how portions of the transcript
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`of the testimony is designated within thirty (30) days of receipt of the transcript of the testimony.
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`If no indication on the record is made, all information disclosed during a deposition shall be
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`deemed “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” until the time within which it may
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`be appropriately designated as provided for herein has passed. Any Party that wishes to disclose
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`the transcript, or information contained therein, may provide written notice of its intent to treat the
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`transcript as non-confidential, after which time, any Party that wants to maintain any portion of
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`the transcript as confidential must designate the confidential portions within fourteen (14) days, or
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`else the transcript may be treated as non-confidential. Any Protected Material that is used in the
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`taking of a deposition shall remain subject to the provisions of this Protective Order, along with the
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`transcript pages of the deposition testimony dealing with such Protected Material. In such cases
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`the court reporter shall be informed of this Protective Order and shall be required to operate in a
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`manner consistent with this Protective Order. In the event the deposition is videotaped, the original
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`and all copies of the videotape shall be marked by the video technician to indicate that the contents
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`of the videotape are subject to this Protective Order, substantially along the lines of “This videotape
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`contains confidential testimony used in this case and is not to be viewed or the contents thereof
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`to be displayed or revealed except pursuant to the terms of the operative Protective Order in
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`Case 1:23-cv-00324-ADA Document 39 Filed 09/18/23 Page 9 of 34
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`this matter or pursuant to written stipulation of the parties.” Counsel for any Producing Party
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`shall have the right to exclude from oral depositions, other than the deponent, deponent’s
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`counsel, the reporter and videographer and video technical support (if any), any person who is
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`not authorized by this Protective Order to receive or access Protected Material based on the
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`designation of such Protected Material. Such right of exclusion shall be applicable only during
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`periods of examination or testimony regarding such Protected Material.
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`8.
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`DISCOVERY MATERIAL DESIGNATED AS “CONFIDENTIAL”
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`(a)
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`A Producing Party may
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`designate Discovery Material
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`as
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`“CONFIDENTIAL” if it contains or reflects confidential, proprietary, and/or commercially
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`sensitive information.
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`(b)
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`Unless otherwise ordered by the Court, Discovery Material designated as
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`“CONFIDENTIAL” may be disclosed only to the following:
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`(i)
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`The Receiving Party’s Outside Counsel, such counsel’s immediate
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`paralegals and staff, and any copying or clerical litigation support services working at the direction
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`of such counsel, paralegals, and staff;
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`(ii)
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`Not more than two (2) representatives of the Receiving Party who
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`are officers or employees of the Receiving Party, who may be, but need not be, in-house counsel
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`for the Receiving Party, as well as their immediate paralegals and staff, to whom disclosure is
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`reasonably necessary for this case, provided that: (a) each such person has agreed to be bound by
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`the provisions of the Protective Order by signing a copy of Exhibit A; (b) no unresolved
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`objections to such disclosure exist after proper notice has been given to all Parties as set forth
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`in Paragraph 12 below; and (c) no such person is an engineer employed by the Receiving Party
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`or involved with the design, development, operation, or patenting of assets of the Receiving Party.
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`Case 1:23-cv-00324-ADA Document 39 Filed 09/18/23 Page 10 of 34
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`(iii) Any outside expert or consultant retained by the Receiving Party to
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`assist in this action, provided that disclosure is only to the extent necessary to perform such work;
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`and provided that: (a) such expert or consultant has agreed to be bound by the provisions of the
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`Protective Order by signing a copy of Exhibit A; (b) such expert or consultant is not a current
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`officer, director, or employee of a Party or of a competitor of a Party, nor anticipated at the time
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`of retention to become an officer, director or employee of a Party or of a competitor of a Party; (c)
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`such expert or consultant accesses the materials in the United States only, and does not transport
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`them to or access them from any foreign jurisdiction; and (d) no unresolved objections to such
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`disclosure exist after proper notice has been given to all Parties as set forth in Paragraph 12 below;
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`(iv) Court reporters, stenographers and videographers retained to record
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`testimony taken in this action;
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`(v)
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`The Court, jury, and court personnel;
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`(vi) Graphics, translation, design, and/or trial consulting personnel,
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`having first agreed to be bound by the provisions of the Protective Order by signing a copy of
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`Exhibit A;
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`(vii) Mock jurors who have signed an undertaking or agreement agreeing
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`not to publicly disclose Protected Material and to keep any information concerning Protected
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`Material confidential;
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`(viii) Any mediator who is assigned to hear this matter, and his or her
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`staff, subject to their agreement to maintain confidentiality to the same degree as required by this
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`(ix) Any other person with the prior written consent of the Producing
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`Protective Order; and
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`Party.
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`Case 1:23-cv-00324-ADA Document 39 Filed 09/18/23 Page 11 of 34
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`9.
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`DISCOVERY MATERIAL DESIGNATED AS “CONFIDENTIAL –
`ATTORNEYS’ EYES ONLY”
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`
`
`
`
`(a)
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`A Producing Party may
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`designate Discovery Material
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`as
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`“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” if it contains or reflects information that is
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`extremely confidential and/or sensitive in nature and the Producing Party reasonably believes that
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`the disclosure of such Discovery Material is likely to cause economic harm or significant
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`competitive disadvantage to the Producing Party. The Parties agree that the following information,
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`if non-public, shall be presumed to merit the “CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
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`designation: trade secrets, pricing information, financial data, sales information, sales or
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`marketing forecasts or plans, business plans, sales or marketing strategy, product development
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`information, engineering documents, testing documents, employee information, and other non-
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`public information of similar competitive and business sensitivity.
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`(b)
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`Unless otherwise ordered by the Court, Discovery Material designated as
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`“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” may be disclosed only to:
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`(i)
`
`The Receiving Party’s Outside Counsel, provided that such Outside
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`Counsel is not involved in competitive decision-making, as defined by U.S. Steel v. United States,
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`730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984), on behalf of a Party or a competitor of a Party, and such
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`Outside Counsel’s immediate paralegals and staff, and any copying or clerical litigation support
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`services working at the direction of such counsel, paralegals, and staff;
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`(ii) With respect to Discovery Material produced by the Plaintiff, not
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`more than two (2) in-house counsel of the Receiving Party, as well as their immediate paralegals
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`and staff to whom disclosure is reasonably necessary for this case, provided that: (a) each such
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`person has agreed to be bound by the provisions of the Protective Order by signing a copy of
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`Case 1:23-cv-00324-ADA Document 39 Filed 09/18/23 Page 12 of 34
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`
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`Exhibit A; and (b) no unresolved objections to such disclosure exist after proper notice has
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`been given to all Parties as set forth in Paragraph 12 below;
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`(iii) Any outside expert or consultant retained by the Receiving Party to
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`assist in this action, provided that disclosure is only to the extent necessary to perform such work;
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`and provided that: (a) such expert or consultant has agreed to be bound by the provisions of the
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`Protective Order by signing a copy of Exhibit A; (b) such expert or consultant is not a current
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`officer, director, or employee of a Party or of a competitor of a Party, nor anticipated at the time
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`of retention to become an officer, director, or employee of a Party or of a competitor of a Party;
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`(c) such expert or consultant is not involved in competitive decision-making, as defined by U.S.
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`Steel v. United States, 730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984), on behalf of a Party or a
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`competitor of a Party; (d) such expert or consultant accesses the materials in the United States
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`only, and does not transport them to or access them from any foreign jurisdiction; and (e) no
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`unresolved objections to such disclosure exist after proper notice has been given to all Parties as
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`set forth in Paragraph 12 below;
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`(iv) Court reporters, stenographers and videographers retained to record
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`testimony taken in this action;
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`(v)
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`The Court, jury, and court personnel;
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`(vi) Graphics, translation, design, and/or trial consulting personnel,
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`having first agreed to be bound by the provisions of the Protective Order by signing a copy of
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`Exhibit A;
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`(vii) Any mediator who is assigned to hear this matter, and his or her
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`staff, subject to their agreement to maintain confidentiality to the same degree as required by this
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`Protective Order; and
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`Case 1:23-cv-00324-ADA Document 39 Filed 09/18/23 Page 13 of 34
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`(viii) Any other person with the prior written consent of the Producing
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`
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`Party.
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`(c)
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`In addition, a Party may disclose arguments and materials derived from
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`Discovery Material designated as “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” to mock
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`jurors who have signed an undertaking or agreement agreeing not to publicly disclose Protected
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`Material and to keep any information concerning Protected Material confidential. A Party may
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`not disclose to mock jurors any original, as-produced materials or information (including, for
`
`example, documents, deposition testimony, or interrogatory responses) produced by another Party
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`designated as “CONFIDENTIAL - ATTORNEYS’ EYES ONLY.”
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`10.
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`DISCOVERY MATERIAL DESIGNATED AS “CONFIDENTIAL –
`OUTSIDE ATTORNEYS’ EYES ONLY - SOURCE CODE”
`
`(a)
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`To the extent production of Source Code becomes necessary to the
`
`prosecution or defense of the case, a Producing Party may designate Source Code as
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`“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY - SOURCE CODE” if it comprises
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`or includes confidential, proprietary, and/or trade secret Source Code.
`
`(b)
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`Nothing in this Order shall be construed as a representation or admission
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`that Source Code is properly discoverable in this action, or to obligate any Party to produce any
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`Source Code.
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`(c)
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`Unless otherwise ordered by the Court, Discovery Material designated as
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`“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY - SOURCE CODE” shall be
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`subject to the provisions set forth in Paragraph 11 below, and may be disclosed, subject to
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`Paragraph 11 below, solely to:
`
`(i)
`
`The Receiving Party’s Outside Counsel, provided that such Outside
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`Counsel is not involved in competitive decision-making, as defined by U.S. Steel v. United States,
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`Case 1:23-cv-00324-ADA Document 39 Filed 09/18/23 Page 14 of 34
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`
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`730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984), on behalf of a Party or a competitor of a Party, and such
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`Outside Counsel’s immediate paralegals and staff, and any copying or clerical litigation support
`
`services working at the direction of such counsel, paralegals, and staff;
`
`(ii)
`
`Any outside expert or consultant retained by the Receiving Party to
`
`assist in this action, provided that disclosure is only to the extent necessary to perform such work;
`
`and provided that: (a) such expert or consultant has agreed to be bound by the provisions of the
`
`Protective Order by signing a copy of Exhibit A; (b) such expert or consultant is not a current
`
`officer, director, or employee of a Party or of a competitor of a Party, nor anticipated at the time
`
`of retention to become an officer, director or employee of a Party or of a competitor of a Party; (c)
`
`such expert or consultant 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; and (d) no unresolved objections to such disclosure exist after proper notice has been given
`
`to all Parties as set forth in Paragraph 12 below;
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`(iii) Court reporters, stenographers and videographers retained to record
`
`testimony taken in this action;
`
`(iv)
`
`(v)
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`The Court, jury, and court personnel;
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`Any mediator who is assigned to hear this matter, and his or her
`
`staff, subject to their agreement to maintain confidentiality to the same degree as required by this
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`Protective Order; and
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`(vi) Any other person with the prior written consent of the Producing
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`Party.
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`Case 1:23-cv-00324-ADA Document 39 Filed 09/18/23 Page 15 of 34
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`11. DISCLOSURE AND REVIEW OF SOURCE CODE
`
`(a)
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`Any Source Code that is produced by Plaintiff shall be made available for
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`inspection in electronic format at the Austin office of its outside counsel, McKool Smith, or any
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`other location mutually agreed by the Parties. Any Source Code that is produced by Apple Inc.
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`will be made available for inspection at the Silicon Valley office of its outside counsel, Ropes &
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`Gray LLP, or any other location mutually agreed by the Parties. Source Code will be made
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`available for inspection between the hours of 8 a.m. and 6 p.m. on business days (i.e., weekdays
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`that are not Federal holidays), although the Parties will be reasonable in accommodating
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`reasonable requests to conduct inspections at other times.
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`(b)
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`Prior to the first inspection of any requested Source Code, the Receiving
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`Party shall provide thirty (30) days notice of the Source Code that it wishes to inspect. The
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`Receiving Party shall provide fourteen (14) days notice prior to any additional inspections.
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`(c)
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`Source Code that is designated “CONFIDENTIAL – OUTSIDE
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`ATTORNEYS’ EYES ONLY - SOURCE CODE” shall be produced for inspection and review
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`subject to the following provisions, unless otherwise agreed by the Producing Party:
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`(i)
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`All Source Code shall be made available by the Producing Party to
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`the Receiving Party’s outside counsel and/or experts in a secure room on a secured computer
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`without Internet access or network access to other computers and on which all access ports have
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`been disabled (except for one printer port), as necessary and appropriate to prevent and protect
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`against any unauthorized copying, transmission, removal or other transfer of any Source Code
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`outside or away from the computer on which the Source Code is provided for inspection (the
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`“Source Code Computer” in the “Source Code Review Room”). The Producing Party shall install
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`tools that are sufficient for viewing and searching the code produced, on the platform produced, if
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`Case 1:23-cv-00324-ADA Document 39 Filed 09/18/23 Page 16 of 34
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`such tools exist and are presently used in the ordinary course of the Producing Party’s business.
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`The Receiving Party’s outside counsel and/or experts may request that commercially available
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`software tools for viewing and searching Source Code be installed on the secured computer,
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`provided, however, that (a) the Receiving Party possesses an appropriate license to such software
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`tools; (b) the Producing Party approves such software tools; and (c) such other software tools are
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`reasonably necessary for the Receiving Party to perform its review of the Source Code consistent
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`with all of the protections herein. The Receiving Party must provide the Producing Party with the
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`CD, DVD, or website containing such licensed software tool(s) at least twenty-one (21) days in
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`advance of the date upon which the Receiving Party wishes to have the additional software tools
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`available for use on the Source Code Computer.
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`(ii)
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`No recordable media or recordable devices, including without
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`limitation sound recorders, cellular telephones, peripheral equipment, cameras, CDs, DVDs, or
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`drives of any kind, shall be permitted into the Source Code Review Room.
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`(iii) The Receiving Party’s outside counsel and/or experts shall be
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`entitled to take notes relating to the Source Code using a computer provided by the Producing
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`Party with its ports and internet communications disabled via security tape or the like, except that
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`a single USB port shall be enabled for transferring the notes only, and provided that the notes are
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`maintained in accordance with the requirements of materials designated “CONFIDENTIAL –
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`OUTSIDE ATTORNEY’S EYES ONLY – SOURCE CODE.” Receiving Party’s outside counsel
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`and/or experts may not copy the Source Code into their notes.
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`(iv)
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`The Producing Party may visually monitor the activities of the
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`Receiving Party’s representatives during any Source Code review, but only to ensure that no
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`Case 1:23-cv-00324-ADA Document 39 Filed 09/18/23 Page 17 of 34
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`unauthorized electronic records of the Source Code and no information concerning the Source
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`Code are being created or transmitted in any way.
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`(v)
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`No copies of all or any portion of the Source Code may leave the
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`room in which the Source Code is inspected except as otherwise provided herein. Further, no
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`other written or electronic record of the Source Code is permitted except as otherwise provided
`
`herein. The Producing Party shall make available a laser printer with commercially reasonable
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`printing speeds for on-site printing during inspection of the Source Code. The Receiving Party
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`may print limited portions of the Source Code only when necessary to prepare court filings or
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`pleadings or other papers (including a testifying expert’s expert report). Any printed portion that
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`consists of more than ten (10) pages of a continuous block of Source Code shall be presumed to
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`be excessive, and the burden shall be on the Receiving Party to demonstrate the need for such a
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`printed copy. The Receiving Party may print out no more than 400 pages total. The Receiving Party
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`may print a reasonable number of additional pages upon a showing of need and the Producing Party’s
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`consent, wherein consent shall not be unreasonably withheld. Should the Receiving Party determine
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`that certain printed pages are unneeded, the Receiving Party may return all copies of these pages to
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`the Producing Party in exchange for up to an equal number of alternate pages. The Receiving Party
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`shall not print Source Code in order to review blocks of Source Code elsewhere in the first instance,
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`i.e., as an alternative to reviewing that Source Code electronically on the Source Code Computer,
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`as the Parties acknowledge and agree that the purpose of the protections herein would be frustrated
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`by printing portions of code for review and analysis elsewhere, and that printing is permitted only
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`when necessary to prepare court filings or pleadings or other papers (including a testifying expert’s
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`expert report). Upon printing a