Case 3:16-cv-02787-WHO Document 110 Filed 01/04/17 Page 1 of 22
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN FRANCISCO DIVISION
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`HUAWEI TECHNOLOGIES CO., LTD.,
`HUAWEI DEVICE USA, INC., and
`HUAWEI TECHNOLOGIES USA, INC.,
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`Plaintiff(s)/Counterclaim
`Defendants,
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`vs.
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`Case Number: 3:16-cv-2787-WHO
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`PROTECTIVE ORDER
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`SAMSUNG ELECTRONICS CO., LTD,
`SAMSUNG ELECTRONICS AMERICA,
`INC.
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`Defendants / Counterclaim-
`Plaintiffs
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`and
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`SAMSUNG RESEARCH AMERICA,
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`Defendant,
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`v.
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`HISILICON TECHNOLOGIES CO., LTD.,
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`Counterclaim-Defendant.
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`1.
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`PURPOSES AND LIMITATIONS
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`Disclosure and discovery activity in this action are likely to involve production of
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`confidential, proprietary, or private information for which special protection from public disclosure
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`and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly,
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`the parties hereby stipulate to and petition the court to enter the following Stipulated Protective
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`Order. The parties acknowledge that this Order does not confer blanket protections on all
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`disclosures or responses to discovery and that the protection it affords from public disclosure and
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`use extends only to the limited information or items that are entitled to confidential treatment under
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`the applicable legal principles. The parties further acknowledge, as set forth in Section 14.4, below,
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`that this Stipulated Protective Order does not entitle them to file confidential information under
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`Case 3:16-cv-02787-WHO Document 110 Filed 01/04/17 Page 2 of 22
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`seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and the standards that
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`will be applied when a party seeks permission from the court to file material under seal.
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`2.
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`DEFINITIONS
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`2.1
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`Challenging Party: a Party or Non-Party that challenges the designation of
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`information or items under this Order.
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`2.2
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`“CONFIDENTIAL” Information or Items: information (regardless of how it is
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`generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of
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`Civil Procedure 26(c).
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`2.3
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`Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well
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`as their support staff).
`Intentionally left blank.
`Designating Party: a Party or Non-Party that designates information or items that it
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`2.5
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`2.4
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`produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “HIGHLY
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE
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`CODE”.
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`2.6
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`Disclosure or Discovery Material: all items or information, regardless of the
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`medium or manner in which it is generated, stored, or maintained (including, among other things,
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`testimony, transcripts, and tangible things), that are produced or generated in disclosures or
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`responses to discovery in this matter.
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`2.7
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`Expert: a person with specialized knowledge or experience in a matter pertinent to
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`the litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or as
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`a consultant in this action, (2) is not a past or current employee of a Party or of a Party’s
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`competitor, and (3) at the time of retention, is not anticipated to become an employee of a Party or
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`of a Party’s competitor.
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`2.8
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`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or
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`Items: extremely sensitive “Confidential Information or Items,” disclosure of which to another
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`Party or Non-Party would create a substantial risk of serious harm that could not be avoided by less
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`Case 3:16-cv-02787-WHO Document 110 Filed 01/04/17 Page 3 of 22
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`restrictive means.
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`2.9
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`“HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items: extremely
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`sensitive “Confidential Information or Items” representing computer code and associated
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`comments and revision histories, formulas, engineering specifications, or schematics that define or
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`otherwise describe in detail the algorithms or structure of software or hardware designs, disclosure
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`of which to another Party or Non-Party would create a substantial risk of serious harm that could
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`not be avoided by less restrictive means.
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`2.10 House Counsel: attorneys who are employees of a party to this action. House
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`Counsel does not include Outside Counsel of Record or any other outside counsel.
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`2.11 Non-Party: any natural person, partnership, corporation, association, or other legal
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`entity not named as a Party to this action.
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`2.12 Outside Counsel of Record: attorneys who are not employees of a party to this
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`action but are retained to represent or advise a party to this action and have appeared in this action
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`on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party.
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`2.13 Party: any party to this action, including all of its officers, directors, employees,
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`consultants, retained experts, and Outside Counsel of Record (and their support staffs).
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`2.14 Producing Party: a Party or Non-Party that produces Disclosure or Discovery
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`Material in this action.
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`2.15 Professional Vendors: persons or entities that provide litigation support services
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`(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing,
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`storing, or retrieving data in any form or medium) and their employees and subcontractors.
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`2.16 Protected Material: any Disclosure or Discovery Material that is designated as
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`“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or as
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`“HIGHLY CONFIDENTIAL – SOURCE CODE.”
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`2.17 Receiving Party: a Party that receives Disclosure or Discovery Material from a
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`Producing Party.
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`Case 3:16-cv-02787-WHO Document 110 Filed 01/04/17 Page 4 of 22
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`3.
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`SCOPE
`The protections conferred by this Stipulation and Order cover not only Protected Material
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`(as defined above), but also (1) any information copied or extracted from Protected Material; (2) all
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`copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,
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`conversations, or presentations by Parties or their Counsel that might reveal Protected Material.
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`However, the protections conferred by this Stipulation and Order do not cover the following
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`information: (a) any information that is in the public domain at the time of disclosure to a
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`Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as a
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`result of publication not involving a violation of this Order, including becoming part of the public
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`record through trial or otherwise; and (b) any information known to the Receiving Party prior to the
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`disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the
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`information lawfully and under no obligation of confidentiality to the Designating Party. Any use
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`of Protected Material at trial shall be governed by a separate agreement or order.
`4.
`DURATION
`Even after final disposition of this litigation, the confidentiality obligations imposed by this
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`Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order
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`otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and
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`defenses in this action, with or without prejudice; and (2) final judgment herein after the
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`completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,
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`including the time limits for filing any motions or applications for extension of time pursuant to
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`applicable law.
`DESIGNATING PROTECTED MATERIAL
`5.
`Exercise of Restraint and Care in Designating Material for Protection. Each Party or
`5.1
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`Non-Party that designates information or items for protection under this Order must take care to
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`limit any such designation to specific material that qualifies under the appropriate standards. Mass,
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`indiscriminate, or routinized designations are prohibited. Designations that are shown to be clearly
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`unjustified or that have been made for an improper purpose (e.g., to unnecessarily encumber or
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`retard the case development process or to impose unnecessary expenses and burdens on other
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`Case 3:16-cv-02787-WHO Document 110 Filed 01/04/17 Page 5 of 22
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`parties) expose the Designating Party to sanctions.
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`If it comes to a Designating Party’s attention that information or items that it designated for
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`protection do not qualify for protection at all or do not qualify for the level of protection initially
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`asserted, that Designating Party must promptly notify all other parties that it is withdrawing the
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`mistaken designation.
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`5.2 Manner and Timing of Designations. Except as otherwise provided in this Order
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`(see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered,
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`Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so
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`designated before the material is disclosed or produced.
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`Designation in conformity with this Order requires:
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`(a) for information in documentary form (e.g., paper or electronic documents, but
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`excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party
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`affix the legend “CONFIDENTIAL,”“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
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`ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE” to each page that contains protected
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`material.
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`A Party or Non-Party that makes original documents or materials available for inspection
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`need not designate them for protection until after the inspecting Party has indicated which material
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`it would like copied and produced. During the inspection and before the designation, all of the
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`material made available for inspection shall be deemed “HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified the documents it wants
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`copied and produced, the Producing Party must determine which documents, or portions thereof,
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`qualify for protection under this Order. Then, before producing the specified documents, the
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`Producing Party must affix the appropriate legend (“CONFIDENTIAL” or “HIGHLY
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE
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`CODE) to each page that contains Protected Material.
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`(b) for testimony given in deposition or in other pretrial or trial proceedings, that the
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`Designating Party identify on the record, before the close of the deposition, hearing, or other
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`proceeding, all protected testimony and specify the level of protection being asserted. When it is
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`Case 3:16-cv-02787-WHO Document 110 Filed 01/04/17 Page 6 of 22
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`impractical to identify separately each portion of testimony that is entitled to protection and it
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`appears that substantial portions of the testimony may qualify for protection, the Designating Party
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`may invoke on the record (before the deposition, hearing, or other proceeding is concluded) a right
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`to have up to 21 days to identify the specific portions of the testimony as to which protection is
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`sought and to specify the level of protection being asserted. Only those portions of the testimony
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`that are appropriately designated for protection within the 21 days shall be covered by the
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`provisions of this Stipulated Protective Order. Alternatively, a Designating Party may specify, at
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`the deposition or up to 21 days afterwards if that period is properly invoked, that the entire
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`transcript shall be treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY.”
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`Parties shall give the other parties notice if they reasonably expect a deposition, hearing or
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`other proceeding to include Protected Material so that the other parties can ensure that only Outside
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`Counsel of Record and other authorized individuals who have signed the “Acknowledgment and
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`Agreement to Be Bound” (Exhibit A) are present at those proceedings. The use of a document as
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`an exhibit at a deposition shall not in any way affect its designation as “CONFIDENTIAL” or
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`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL –
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`SOURCE CODE.”
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`Transcripts containing Protected Material shall have an obvious legend on the title page that
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`the transcript contains Protected Material, and the title page shall be followed by a list of all pages
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`(including line numbers as appropriate) that have been designated as Protected Material and the
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`level of protection being asserted by the Designating Party. The Designating Party shall inform the
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`court reporter of these requirements. Any transcript that is prepared before the expiration of a 21-
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`day period for designation shall be treated during that period as if it had been designated “HIGHLY
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety unless otherwise agreed. After
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`the expiration of that period, the transcript shall be treated only as actually designated.
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`(c) for information produced in some form other than documentary and for any
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`other tangible items, that the Producing Party affix in a prominent place on the exterior of the
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`container or containers in which the information or item is stored the legend “CONFIDENTIAL”
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`Case 3:16-cv-02787-WHO Document 110 Filed 01/04/17 Page 7 of 22
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`or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL
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`– SOURCE CODE”. If only a portion or portions of the information or item warrant protection, the
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`Producing Party, to the extent practicable, shall identify the protected portion(s) and specify the
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`level of protection being asserted.
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`5.3
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`Inadvertent Failures to Designate. If promptly corrected after a party learns of an
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`inadvertent failure to designate qualified information, such an inadvertent failure does not, standing
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`alone, waive the Designating Party’s right to secure protection under this Order for such material.
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`Upon prompt notice and correction of a designation, the Receiving Party must make reasonable
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`efforts to assure that the material is treated in accordance with the provisions of this Order and
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`shall return or destroy, at the Designating Party’s option, all qualified information or items that
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`were not designated properly.
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`6.
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`CHALLENGING CONFIDENTIALITY DESIGNATIONS
`6.1
`Timing of Challenges. Any Party or Non-Party may challenge a designation of
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`confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality
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`designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic
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`burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to
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`challenge a confidentiality designation by electing not to mount a challenge promptly after the
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`original designation is disclosed.
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`6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process
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`by providing written notice of each designation it is challenging and describing the basis for each
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`challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must
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`recite that the challenge to confidentiality is being made in accordance with this specific paragraph
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`of the Protective Order. The parties shall attempt to resolve each challenge in good faith and must
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`begin the process by conferring directly (in voice to voice dialogue; other forms of communication
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`are not sufficient) within 14 days of the date of service of notice. In conferring, the Challenging
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`Party must explain the basis for its belief that the confidentiality designation was not proper and
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`must give the Designating Party an opportunity to review the designated material, to reconsider the
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`circumstances, and, if no change in designation is offered, to explain the basis for the chosen
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`Case 3:16-cv-02787-WHO Document 110 Filed 01/04/17 Page 8 of 22
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`designation. A Challenging Party may proceed to the next stage of the challenge process only if it
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`has engaged in this meet and confer process first or establishes that the Designating Party is
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`unwilling to participate in the meet and confer process in a timely manner.
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`6.3
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`Judicial Intervention. If the Parties cannot resolve a challenge without court
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`intervention, the Designating Party shall file and serve a motion to retain confidentiality under
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`Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within 21 days of
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`the initial notice of challenge or within 14 days of the parties agreeing that the meet and confer
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`process will not resolve their dispute, whichever is earlier.1 Each such motion must be
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`accompanied by a competent declaration affirming that the movant has complied with the meet and
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`confer requirements imposed in the preceding paragraph. Failure by the Designating Party to make
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`such a motion including the required declaration within 21 days (or 14 days, if applicable) shall
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`automatically waive the confidentiality designation for each challenged designation. In addition,
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`the Challenging Party may file a motion challenging a confidentiality designation at any time if
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`there is good cause for doing so, including a challenge to the designation of a deposition transcript
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`or any portions thereof. Any motion brought pursuant to this provision must be accompanied by a
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`competent declaration affirming that the movant has complied with the meet and confer
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`requirements imposed by the preceding paragraph.
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`The burden of persuasion in any such challenge proceeding shall be on the Designating
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`Party. Frivolous challenges and those made for an improper purpose (e.g., to harass or impose
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`unnecessary expenses and burdens on other parties) may expose the Challenging Party to sanctions.
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`Unless the Designating Party has waived the confidentiality designation by failing to file a motion
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`to retain confidentiality as described above, all parties shall continue to afford the material in
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`question the level of protection to which it is entitled under the Producing Party’s designation until
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`the court rules on the challenge.
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` Alternative: It may be appropriate in certain circumstances for the parties to agree to shift the
`burden to move on the Challenging Party after a certain number of challenges are made to avoid an
`abuse of the process. The burden of persuasion would remain on the Designating Party.
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`Case 3:16-cv-02787-WHO Document 110 Filed 01/04/17 Page 9 of 22
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`7.
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`ACCESS TO AND USE OF PROTECTED MATERIAL
`7.1
`Basic Principles. A Receiving Party may use Protected Material that is disclosed or
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`produced by another Party or by a Non-Party in connection with this case only for prosecuting,
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`defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to
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`the categories of persons and under the conditions described in this Order. When the litigation has
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`been terminated, a Receiving Party must comply with the provisions of section 15 below (FINAL
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`DISPOSITION).
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`Protected Material must be stored and maintained by a Receiving Party at a location and in
`a secure manner2 that ensures that access is limited to the persons authorized under this Order.
`7.2
`Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered
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`by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any
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`information or item designated “CONFIDENTIAL” only to:
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`(a) the Receiving Party’s Outside Counsel of Record in this action, as well as
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`employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the
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`information for this litigation;
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`(b) the officers, directors, and employees (including House Counsel) of the
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`Receiving Party to whom disclosure is reasonably necessary for this litigation and who have signed
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`the “Acknowledgment and Agreement to Be Bound” (Exhibit A), but in no event shall such
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`persons allowed disclosure pursuant to this paragraph exceed 3 persons unless further agreed to in
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`writing by the Disclosing Party;
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`(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is
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`reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement
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`to Be Bound” (Exhibit A);
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`(d) the court and its personnel;
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`(e) court reporters and their staff, professional jury or trial consultants, mock jurors,
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` It may be appropriate under certain circumstances to require the Receiving Party to store any
`electronic Protected Material in password-protected form.
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`Case 3:16-cv-02787-WHO Document 110 Filed 01/04/17 Page 10 of 22
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`and Professional Vendors to whom disclosure is reasonably necessary for this litigation and who
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`have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
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`(f) during their depositions, witnesses in the action to whom disclosure is reasonably
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`necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A),
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`unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed
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`deposition testimony or exhibits to depositions that reveal Protected Material must be separately
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`bound by the court reporter and may not be disclosed to anyone except as permitted under this
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`Stipulated Protective Order.
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`(g) the author or recipient of a document containing the information or a custodian
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`or other person who otherwise possessed or knew the information.
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`(h) other persons whom the designating party agrees in writing may view the
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`information.
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`7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” and
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`“HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items. Unless otherwise ordered
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`by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any
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`information or item designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or
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`“HIGHLY CONFIDENTIAL – SOURCE CODE” only to:
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`(a) the Receiving Party’s Outside Counsel of Record in this action, as well as
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`employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the
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`information for this litigation and who have signed the “Acknowledgment and Agreement to Be
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`Bound” that is attached hereto as Exhibit A;
`(b) intentionally left blank;
`(c) Experts of the Receiving Party (1) to whom disclosure is reasonably necessary
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`for this litigation, (2) who have signed the “Acknowledgment and Agreement to Be Bound”
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`(Exhibit A), and (3) as to whom the procedures set forth in paragraph 7.4(a)(2), below, have been
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`(d) the court and its personnel;
`(e) court reporters and their staff, professional jury or trial consultants, mock jurors,
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`Case 3:16-cv-02787-WHO Document 110 Filed 01/04/17 Page 11 of 22
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`and Professional Vendors to whom disclosure is reasonably necessary for this litigation and who
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`have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); and
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`(f) the author or recipient of a document containing the information or a custodian
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`or other person who otherwise possessed or knew the information.
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`(g) other persons whom the designating party agrees in writing may view the
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`information.
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`7.4 Procedures for Approving or Objecting to Disclosure of “HIGHLY
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE
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`CODE” Information or Items to Experts.
`(a)(1) Intentionally left blank.
`(a)(2) Unless otherwise ordered by the court or agreed to in writing by the
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`Designating Party, a Party that seeks to disclose to an Expert (as defined in this Order) any
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`information or item that has been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’
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`EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” pursuant to paragraph 7.3(c)
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`first must make a written request to the Designating Party that (1) identifies the general categories
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`of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” “HIGHLY CONFIDENTIAL –
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`SOURCE CODE” information that the Receiving Party seeks permission to disclose to the Expert,
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`(2) sets forth the full name of the Expert and the city and state of his or her primary residence, (3)
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`attaches a copy of the Expert’s current resume, (4) identifies the Expert’s current employer(s), (5)
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`identifies each person or entity from whom the Expert has received compensation or funding for
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`work in his or her areas of expertise or to whom the expert has provided professional services,
`including in connection with a litigation, at any time during the preceding five years,3 and (6)
`identifies (by name and number of the case, filing date, and location of court) any litigation in
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`connection with which the Expert has offered expert testimony, including through a declaration,
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` If the Expert believes any of this information is subject to a confidentiality obligation to a third-
`party, then the Expert should provide whatever information the Expert believes can be disclosed
`without violating any confidentiality agreements, and the Party seeking to disclose to the Expert
`shall be available to meet and confer with the Designating Party regarding any such engagement.
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`report, or testimony at a deposition or trial, during the preceding five years.
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`(b) A Party that makes a request and provides the information specified in the
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`preceding respective paragraphs may disclose the subject Protected Material to the identified
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`Expert unless, within 14 days of delivering the request, the Party receives a written objection from
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`the Designating Party. Any such objection must set forth in detail the grounds on which it is based.
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`(c) A Party that receives a timely written objection must meet and confer with the
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`Designating Party (through direct voice to voice dialogue) to try to resolve the matter by agreement
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`within seven days of the written objection. If no agreement is reached, the Party seeking to make
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`the disclosure to the Expert may file a motion as provided in Civil Local Rule 7 (and in compliance
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`with Civil Local Rule 79-5, if applicable) seeking permission from the court to do so. Any such
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`motion must describe the circumstances with specificity, set forth in detail the reasons why the
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`disclosure to the Expert is reasonably necessary, assess the risk of harm that the disclosure would
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`entail, and suggest any additional means that could be used to reduce that risk. In addition, any
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`such motion must be accompanied by a competent declaration describing the parties’ efforts to
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`resolve the matter by agreement (i.e., the extent and the content of the meet and confer discussions)
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`and setting forth the reasons advanced by the Designating Party for its refusal to approve the
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`disclosure.
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`In any such proceeding, the Party opposing disclosure to the Expert shall bear the burden of
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`proving that the risk of harm that the disclosure would entail (under the safeguards proposed)
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`outweighs the Receiving Party’s need to disclose the Protected Material to its Expert.
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`8.
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`PROSECUTION BAR
`Absent written consent from the Producing Party, any individual who receives access to
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`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” “HIGHLY CONFIDENTIAL –
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`SOURCE CODE” information shall not be involved in the prosecution of patents or patent
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`applications relating to the subject matter of the patents-in-suit as well as the subject matter of the
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`Protected Material received, including without limitation the patents asserted in this action and any
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`patent or application claiming priority to or otherwise related to the patents asserted in this action,
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`before any foreign or domestic agency, including the United States Patent and Trademark Office
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`(“the Patent Office”). For purposes of this paragraph, “prosecution” includes directly or indirectly
`drafting, amending, advising, or otherwise affecting the scope or maintenance of patent claims. To
`avoid any doubt, “prosecution” as used in this paragraph does not include representing a party
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`challenging a patent before a domestic or foreign agency or defending against such a challenge
`(including, but not limited to, a reissue protest, ex parte reexamination or inter partes
`reexamination or review), provided that any individual who receives access to HIGHLY
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY or HIGHLY CONFIDENTIAL – SOURCE
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`CODE information shall not participate or provide any other input in amending claims in reissue
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`proceedings. This Prosecution Bar shall begin when access to “HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” information
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`is first received by the affected individual and shall end two (2) years after final termination of this
`action.
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`9.
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`SOURCE CODE
`(a)
`To the extent production of source code becomes necessary in this case, a
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`Producing Party may designate source code as “HIGHLY CONFIDENTIAL - SOURCE CODE” if
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`it comprises or includes confidential, proprietary or trade secret source code.
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`(b)
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`Protected Material designated as “HIGHLY CONFIDENTIAL – SOURCE
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`CODE” shall be subject to all of the protections afforded to “HIGHLY CONFIDENTIAL –
`ATTORNEYS’ EYES ONLY” information including the Prosecution Bar set forth in Paragraph 8,
`and may be disclosed only to the individuals to whom “HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY” information may be disclosed, as set forth in Paragraphs 7.3 and
`7.4.
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`(c)
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`Any source code produced in discovery shall be made available for
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`inspection, in a format allowing it to be reasonably reviewed and searched, during normal business
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`hours or at other mutually agreeable times, at an office of the Producing Party’s counsel or another
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`mutually agreed upon location. The Receiving Party shall give reasonable notice to the Producing
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`Party of the dates that it is planning to review source code and the names of individuals who will
`review source code, and the Producing Party shall not unreasonably restrict access to such review.
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`The source code shall be made available for inspection on a secured computer in a secured room
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`without Internet access or network access to other computers, and the Receiving Party shall not
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`copy, remove, or otherwise transfer any portion of the source code onto any recordable media or
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`recordable device. The Producing Party may visually monitor the activities