Case 5:17-cv-03886-LHK Document 64 Filed 03/06/18 Page 1 of 27
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`Courtland L. Reichman
`(California Bar No. 268873)
`Jennifer P. Estremera
`(California Bar No. 251076)
`MCKOOL SMITH PC
`255 Shoreline Drive, Suite 510
`Redwood Shores, California 94065
`Telephone: (650) 394-1400
`Facsimile: (650) 394-1422
`creichman@mckoolsmith.com
`jestremera@mckoolsmith.com
`
`John B. Campbell (Admitted Pro Hac Vice)
`Kathy H. Li (Admitted Pro Hac Vice)
`MCKOOL SMITH PC
`300 W. 6th Street, Suite 1700
`Austin, Texas 78701
`Telephone: (512) 692-8700
`Facsimile: (512) 692-8744
`jcampbell@mckoolsmith.com
`kli@mkoolsmith.com
`
`Attorneys for Plaintiff
`Immersion Corporation
`
`
`Adam R. Alper (SBN 196834)
`adam.alper@kirkland.com
`555 California Street
`KIRKLAND & ELLIS LLP
`San Francisco, California 94104
`Telephone: (415) 439-1400
`Facsimile: (415) 439-1500
`
`
`Michael W. De Vries (SBN 211001)
`michael.devries@kirkland.com
`KIRKLAND & ELLIS LLP
`333 South Hope Street
`Los Angeles, California 90071
`Telephone: (213) 680-8400
`Facsimile: (213) 680-8500
`
`Lien Dang (SBN 254221)
`lien.dang@kirkland.com
`KIRKLAND & ELLIS LLP
`3330 Hillview Avenue
`Palo Alto, California 94304
`Telephone: (650) 859-7000
`Facsimile: (650) 859-7500
`Attorneys for Defendant
`Fitbit, Inc.
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
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`CASE NO. 5:17-CV-03886-LHK
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`[PROPOSED] STIPULATED
`PROTECTIVE ORDER REGARDING
`CONFIDENTIAL INFORMATION
`
`DEMAND FOR JURY TRIAL
`
`Judge: Honorable Lucy Koh
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`[PROPOSED] STIPULATED PROTECTIVE ORDER
`
`)))))))))))
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`IMMERSION CORPORATION,
`
` Plaintiff,
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` v.
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`FITBIT, INC.,
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` Defendant.
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`STIPULATED PROTECTIVE ORDER
`1.
`PURPOSES AND LIMITATIONS
`This action is brought by Plaintiff (“Immersion”) against Defendant (“Fitbit”). The litigation
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`of this action may require the Parties or nonparties to disclose information that contains proprietary,
`confidential, commercially sensitive, trade secret, or otherwise nonpublic information. If such
`information is disclosed or disseminated in an unprotected manner, it may cause substantial harm to
`Plaintiff, Defendant, and/or nonparties, including loss of competitive advantage, loss of existing
`business, and loss of business opportunities. Accordingly, the Parties, by and between their
`representative counsel have stipulated and agreed, pursuant to Federal Rule of Civil Procedure 26(c)
`and subject to the approval of the Court, that the following Stipulated Protective Order (the “Order”)
`shall govern the handling of Disclosure or Discovery Material in the above-captioned action (the
`“Present Litigation”).
`The parties acknowledge that this Order does not confer blanket protections on all
`disclosures or responses to discovery and that the protection it affords from public disclosure and use
`extends only to the limited information or items that are entitled to confidential treatment under the
`applicable legal principles. The parties further acknowledge, as set forth in Section 14.4 below, that
`this Stipulated Protective Order does not entitle the Parties to file confidential information under
`seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and the standards that
`will be applied when a party seeks permission from the court to file material under seal.
`2.
`DEFINITIONS
`2.1
`Challenging Party: a Party or Non-Party that challenges the designation of
`information or items under this Order.
`2.2
`“CONFIDENTIAL” Information or Items: information (regardless of how it is
`generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of
`Civil Procedure 26(c), including material which reflects or contains any of the following: (i)
`confidential, proprietary, or commercially sensitive information; (ii) any information which is not
`generally known and which the Producing Party would not normally reveal to third parties or would
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`cause third parties to maintain in confidence; or (iii) confidential information of a nonparty that the
`Producing Party is bound by a separate confidentiality agreement or court order to maintain in
`confidence and that the Producing Party is permitted to produce in the Action.
`Counsel (without qualifier): Outside Counsel of Record and In-House Counsel.
`2.3
`2.4 Designating Party: a Party or Non-Party designating Disclosure or Discovery Material
`as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY,”
`or “HIGHLY CONFIDENTIAL – SOURCE CODE.”
`2.5
`Disclosure or Discovery Material: all items or information, regardless of the medium
`or manner in which it is generated, stored, or maintained (including, among other things, testimony,
`transcripts, and tangible things), that are produced or generated in disclosures or responses to
`discovery in this matter.
`2.6
`Expert: a person with specialized knowledge or experience in a matter pertinent to the
`Present Litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or
`as a consultant in the Present Litigation, (2) is not a past or current employee of a Party or of a
`Party’s competitor, and (3) at the time of retention, is not anticipated to become an employee of a
`Party or of a Party’s competitor.
`“HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY”
`2.7
`Information or Items: extremely sensitive “CONFIDENTIAL Information or Items,” disclosure of
`which to another Party or Non-Party would create a substantial risk of serious harm that could not be
`avoided by less restrictive means. Such information or items may include, for example:
`a)
`information concerning proposed or actual research and development, whether or not
`such research and development has resulted in a commercial product that has been
`disclosed to the public;
`business, marketing, or strategic proposals or plans; customer, vendor, and employee
`lists, whether targeted or actual; and
`financial information, such as that related to expenses, costs, pricing, sales, or profits;
`highly sensitive design, development, technical, or manufacturing information;
`licensing agreements and communications; and
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`c)
`d)
`e)
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`b)
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`f)
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`alleged trade secrets, i.e., information, including a formula, pattern, compilation,
`program, device, method, technique, or process, that: (i) derives independent
`economic value, actual or potential, from not being generally known to, and not being
`readily ascertainable by proper means by, other persons who can obtain economic
`value from its disclosure or use, and (ii) is the subject of efforts that are reasonable
`under the circumstances to maintain its secrecy.
`“HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items: extremely
`2.8
`sensitive “Confidential Information or Items” representing computer code and associated comments
`and revision histories, formulas, engineering specifications, or schematics that define or otherwise
`describe in detail the algorithms or structure of software or hardware designs, disclosure of which to
`another Party or Non-Party would create a substantial risk of serious harm that could not be avoided
`by less restrictive means. Source code includes, without limitation, computer code, scripts,
`assembly, object code, RTL code, source code listings and descriptions of source code, object code
`listings and descriptions of object code, formulas, engineering specifications, electronic production
`files, including net lists, GDS files, CAD files, and the like, or schematics or databases that define or
`otherwise describe in detail the algorithms or structure of software or hardware. Source code
`documents at least include (1) printed documents that contain selected source code or hardware
`components (“printed source code”); (2) electronic communications and descriptive documents, such
`as emails, design documents and programming examples, which contain selected source code or
`hardware components (“described source code”); (3) electronic source code documents that reside in
`a source code repository from which software and related data files may be compiled, assembled,
`linked, executed, debugged and/or tested (“source code files”); (4) electronic production files,
`schematics, or databases as described above; and (5) transcripts, reports, video, audio, or other media
`that include, quote, cite, describe, or otherwise refer to source code, source code files, and/or the
`development thereof. Source code files may include “header files,” “make” files, project files, link
`files, and other human-readable text files used in the generation, compilation, translation, and/or
`building of executable software, including software intended for execution by an interpreter.
`In-House Counsel: attorneys who are employees of a party to the Present Litigation.
`2.9
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`In-House Counsel does not include Outside Counsel of Record or any other outside counsel.
`2.10 Non-Party: any natural person, partnership, corporation, association, or other legal
`entity not named as a Party to the Present Litigation.
`2.11 Outside Counsel of Record: law firms and/or attorneys that have been retained by a
`Party to provide advice in connection with the Present Litigation, have appeared in the Present
`Litigation on behalf of that Party, and are not employees of that Party. Outside Counsel of Record
`includes attorneys, paralegals, assistants, and stenographic, clerical, and support employees and
`vendors of the respective law firms and/or attorneys.
`2.12 Party: any party to the Present Litigation, including all of its officers, directors,
`employees, consultants, retained experts, and Outside Counsel of Record (and their support staffs).
`2.13 Producing Party: a Party or Non-Party that produces Disclosure or Discovery
`Material in the Present Litigation.
`2.14 Professional Vendors: persons or entities that provide litigation support services (e.g.,
`jury and trial consultation, photocopying, videotaping, translating, preparing exhibits or
`demonstrations, and organizing, storing, or retrieving data in any form or medium) and their
`employees and subcontractors.
`2.15 Protected Material: any Disclosure or Discovery Material that is designated as
`“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY,” or
`“HIGHLY CONFIDENTIAL – SOURCE CODE.”
`2.16 Receiving Party: a Party to whom Disclosure or Discovery Material is produced,
`disclosed, or made available for inspection from a Producing Party.
`3.
`SCOPE
`The protections conferred by this Order cover not only Protected Material (as defined above),
`but also (1) any information copied or extracted from Protected Material; (2) all copies, excerpts,
`summaries, or compilations of Protected Material; and (3) any testimony, conversations, or
`presentations by Parties or their Counsel that might reveal Protected Material. However, the
`protections conferred by this Order do not cover the following information: (a) any information that
`is in the public domain at the time of disclosure to a Receiving Party or becomes part of the public
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`domain after its disclosure to a Receiving Party as a result of publication not involving a violation of
`this Order, including becoming part of the public record through trial or otherwise; and (b) any
`information known to the Receiving Party prior to the disclosure or obtained by the Receiving Party
`after the disclosure from a source who obtained the information lawfully and under no obligation of
`confidentiality to the Designating Party. Any use of Protected Material at trial shall require a
`separate agreement or order.
`4.
`DURATION
`Even after final disposition of this litigation, the confidentiality obligations imposed by this
`Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order
`otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and
`defenses in the Present Litigation, with or without prejudice; and (2) final judgment after the
`completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of the Present
`Litigation, including the time limits for filing any motions or applications for extension of time
`pursuant to applicable law.
`5.
`DESIGNATING PROTECTED MATERIAL
`
`A Party or Non-Party may designate Disclosure or Discovery Material, in whole or in part,
`for protection under the provisions of this Order with one of the following designations:
`“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY” or
`“HIGHLY CONFIDENTIAL – SOURCE CODE.”
`Exercise of Restraint and Care in Designating Material for Protection. Each Party or
`5.1
`Non-Party that designates Disclosures or Discovery Material for protection under this Order should,
`to the extent practicable, take care to limit any such designation to specific material that qualifies
`under the appropriate standards. To the extent it is practical to do so, the Designating Party should
`designate for protection only those parts of material, documents, items, or oral or written
`communications that qualify – so that other portions of the material, documents, items, or
`communications for which protection is not warranted are not swept unjustifiably within the ambit of
`this Order.
`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 or do not qualify for the level of protection initially asserted,
`that Designating Party must promptly notify all other Parties that it is withdrawing the mistaken
`designation.
`5.2 Manner and Timing of Designations. Except as otherwise provided in this Order, or
`as otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
`under this Order must be clearly so designated before the material is disclosed or produced.
`Designation in conformity with this Order requires:
`(a) for information in documentary form (e.g., paper or electronic documents, but excluding
`transcripts of depositions or other pretrial or trial proceedings), that the Producing Party affix the
`legend “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES
`ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE” to each page that contains protected
`material.
`(b) for testimony given in deposition or in other pretrial or trial proceedings, that the
`Designating Party identify on the record, before the close of the deposition, hearing, or other
`proceeding, or within twenty-one (21) business days after receipt of a transcript of such testimony,
`the specific portions of the testimony as to which protection is sought and to specify the level of
`protection being asserted. All testimony shall be treated as “HIGHLY CONFIDENTIAL –
`OUTSIDE ATTORNEYS’ EYES ONLY” in its entirety until the expiration of twenty-one (21)
`business days after receipt of the transcript by counsel. After the expiration of that period, the
`transcript shall be treated only as actually designated.
`Parties shall give the other parties notice if they reasonably expect a deposition, hearing, or
`other proceeding to include Protected Material so that the other parties can ensure that only
`authorized individuals who have signed the “Acknowledgment and Agreement to Be Bound”
`(Exhibit A) are present at those proceedings. The use of a document as an exhibit at a deposition
`shall not in any way affect its designation as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL –
`OUTSIDE ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE.”
` (c) for information produced in some form other than documentary and for any other
`tangible items, that the Producing Party affix in a prominent place on the exterior of the container or
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`containers in which the information or item is stored, or on a tag or label attached to the item to be
`designated, the legend “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – OUTSIDE
`ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE.”
`5.3
`Inadvertent Failures to Designate. An inadvertent failure to designate qualified
`information or items does not, standing alone, waive the Designating Party’s right to secure
`protection under this Order for such material. Upon correction of a designation, the Receiving Party
`must make reasonable efforts to assure that the material is treated in accordance with the provisions
`of this Order.
`6.
`CHALLENGING CONFIDENTIALITY DESIGNATIONS
`Timing of Challenges. Any Party may challenge a designation of confidentiality at
`6.1
`any time. Unless a prompt challenge to a Designating Party’s confidentiality designation is
`necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, or a
`significant disruption or delay of the Present Litigation, a Party does not waive its right to challenge
`a confidentiality designation by electing not to mount a challenge promptly after the original
`designation is disclosed.
`6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process
`by providing written notice of each designation it is challenging and describing the basis for each
`challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must
`recite that the challenge to confidentiality is being made in accordance with this specific paragraph
`of the Protective Order. The parties shall attempt to resolve each challenge in good faith and must
`begin the process by conferring directly (in voice to voice dialogue; other forms of communication
`are not sufficient) within fourteen (14) days of the date of service of notice. In conferring, the
`Challenging Party must explain the basis for its belief that the confidentiality designation was not
`proper and must give the Designating Party an opportunity to review the designated material, to
`reconsider the circumstances, and, if no change in designation is offered, to explain the basis for the
`chosen designation. A Challenging Party may proceed to the next stage of the challenge process
`only if it has engaged in this meet and confer process first or establishes that the Designating Party is
`unwilling to participate in the meet and confer process in a timely manner.
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`Judicial Intervention. If the Parties cannot resolve a challenge without court
`6.3
`intervention, the Challenging Party may file and serve a motion challenging a confidentiality
`designation within twenty-one (21) days of the initial notice of challenge or within fourteen (14)
`days of the parties agreeing that the meet and confer process will not resolve their dispute,
`whichever is later. Each such motion must be accompanied by a competent declaration affirming
`that the movant has complied with the meet and confer requirements imposed by the preceding
`paragraph.
`The burden of persuasion in any such challenge proceeding shall be on the Challenging
`Party. Frivolous challenges and those made for an improper purpose (e.g., to harass or impose
`unnecessary expenses and burdens on other parties) may expose the Challenging Party to sanctions.
`All Parties shall continue to afford the material in question the level of protection to which it is
`entitled under the Producing Party’s designation until the Court rules on the challenge.
`7.
`ACCESS TO AND USE OF PROTECTED MATERIAL
`7.1 Basic Principles. A Receiving Party may only use Protected Material disclosed or
`produced by another Party or by a Non-Party in the Present Litigation for the purpose of prosecuting
`or defending the Present Litigation and any related appellate proceeding. Protected Material
`disclosed or produced by another Party or by a Non-Party in the Present Litigation may not be used
`for any other purpose, including, without limitation, any commercial or business purpose, pending or
`subsequent litigation, or pending or subsequent agency action, absent the prior written consent of the
`Producing Party and other Parties, or by leave of the Court.
`Such Protected Material may be disclosed only to the categories of persons and under the
`conditions described in this Order. When the litigation has been terminated, a Receiving Party must
`comply with the provisions of Section 15 below (“FINAL DISPOSITION”).
`Protected Material must be stored and maintained by a Receiving Party at a location and in a
`secure manner that ensures that access is limited to the persons authorized under this Order.
`Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered
`7.2
`by the Court or permitted in writing by the Designating Party, a Receiving Party may disclose any
`information or item designated “CONFIDENTIAL” only to:
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`(a) the Receiving Party’s Outside Counsel of Record in the Present Litigation, as well as
`employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the
`information for this litigation and who have signed the “Acknowledgment and Agreement to Be
`Bound” that is attached hereto as Exhibit A;
`(b) Experts (as defined in this Order) of the Receiving Party, as well as employees of said
`Expert, to whom disclosure is reasonably necessary for this litigation and who have signed the
`“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A;
`(c) the Court, including the United States District Court for the Northern District of
`California, any appellate court with jurisdiction over any appeal from the Present Litigation, and
`their personnel assisting in adjudicative functions;
`(d) court reporters and their staff, professional jury or trial consultants, and Professional
`Vendors to whom disclosure is reasonably necessary for this litigation and who have signed the
`“Acknowledgment and Agreement to Be Bound” (Exhibit A);
`(e) during their depositions, witnesses in the Present Litigation to whom disclosure is
`reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound”
`(Exhibit A), unless otherwise agreed by the Designating Party or ordered by the Court. Pages of
`transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be
`separately bound by the court reporter and may not be disclosed to anyone except as permitted under
`this Protective Order;
`(f) the author or recipient of a document containing the information or a custodian or
`other person who otherwise possessed or knew the information.
`Disclosure of “HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES
`7.3
`ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items. Unless
`otherwise ordered by the Court or permitted in writing by the Designating Party, a Receiving Party
`may disclose any information or item designated “HIGHLY CONFIDENTIAL – OUTSIDE
`ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” only to the
`following individuals, subject to the limitations set forth in Section 8 (“Prosecution Bar”):
`(a) the Receiving Party’s Outside Counsel of Record in the Present Litigation, as well as
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`employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the
`information for this litigation and who have signed the “Acknowledgment and Agreement to Be
`Bound” that is attached hereto as Exhibit A;
`(b) Experts of the Receiving Party, as well as employees of said Expert, (1) to whom
`disclosure is reasonably necessary for this litigation, (2) who have signed the “Acknowledgment and
`Agreement to Be Bound” (Exhibit A), and (3) as to whom the procedures set forth in Section 7.4,
`below, have been followed;
`(c) the Court, including the United States District Court for the Northern District of
`California, any appellate court with jurisdiction over any appeal from the Present Litigation, and
`their personnel assisting in adjudicative functions;
`(d) court reporters and their staff, professional jury or trial consultants, and Professional
`Vendors to whom disclosure is reasonably necessary for this litigation and who have signed the
`“Acknowledgment and Agreement to Be Bound” hat is attached hereto as Exhibit A; and
`(e) the author or recipient of a document containing the information or a custodian or
`other person who otherwise possessed or knew the information.
`7.4
`Procedures for Approving or Objecting to Disclosure of “HIGHLY CONFIDENTIAL
`– OUTSIDE ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE”
`Information or Items to Experts.
`(a) Unless otherwise ordered by the Court or agreed to in writing by the Designating
`Party, a Party that seeks to disclose to an Expert (as defined in this Order) any information or item
`that has been designated “HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY”
`or “HIGHLY CONFIDENTIAL – SOURCE CODE” pursuant to Section 7.3(c) first must make a
`written request to the Designating Party that (1) identifies the general categories of “HIGHLY
`CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL –
`SOURCE CODE” information that the Receiving Party seeks permission to disclose to the Expert,
`(2) sets forth the full name of the Expert and the city and state of his or her primary residence, (3)
`attaches a copy of the Expert’s current resume, (4) identifies the Expert’s current employer(s), (5)
`identifies each person or entity from whom the Expert has been employed by, consulted for, received
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`compensation or funding for 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, and (6) identifies (by name and number of the case, filing date, and location of
`court) any litigation in connection with which the Expert has offered expert testimony, including
`through a declaration, report, or testimony at a deposition or trial, during the preceding five years.
`(b) A Party that makes a request and provides the information specified in the preceding
`paragraph may disclose the subject Protected Material to the identified Expert unless, within five (5)
`business days from receipt of notice (plus three (3) extra business days if notice is given other than
`by hand delivery, e-mail delivery or facsimile transmission), the Party receives a written objection
`from 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
`Designating Party (through direct voice to voice dialogue) to try to resolve the matter by agreement
`within seven (7) business days of the written objection. If no agreement is reached, the Party
`seeking to make the disclosure to the Expert may file a motion as provided in Civil Local Rule 7
`(and in compliance with Civil Local Rule 79-5, if applicable) seeking permission from the Court to
`do so. Any such motion must describe the circumstances with specificity, set forth in detail the
`reasons why disclosure to the Expert is reasonably necessary, assess the risk of harm that the
`disclosure would entail, and suggest any additional means that could be used to reduce that risk. In
`addition, any such motion must be accompanied by a competent declaration describing the parties’
`efforts to resolve the matter by agreement (i.e., the extent and the content of the meet and confer
`discussions) and setting forth the reasons advanced by the Designating Party for its refusal to
`approve the disclosure.
`In any such proceeding, the Party opposing disclosure to the Expert shall bear the burden
`of proving that the risk of harm that the disclosure would entail (under the safeguards proposed)
`outweighs the Receiving Party’s need to disclose the Protected Material to its Expert.
`8.
`PROSECUTION BAR
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`Absent written consent from the Designating Party, any individual who receives “HIGHLY
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`CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL –
`SOURCE CODE” Information or Items (the “Affected Individual”) shall not be involved, directly or
`indirectly, in the prosecution of patents or patent applications relating to the functionality, operation,
`and design of software or hardware relating to the technology disclosed in any of the patents-in-suit,
`or relating to devices containing health, activity, or fitness tracking technologies, before any foreign
`or domestic agency, including the United States Patent and Trademark Office on behalf of a
`patentee.
`
`For purposes of this section, “prosecution” includes advising on, consulting on, preparing,
`prosecuting, drafting, editing, and/or amending of applications, specifications, claims, and/or
`responses to office actions, or otherwise affecting the disclosure in patent applications or
`specifications or the scope of claims in patents or patent applications. These prohibitions are not
`intended to and shall not preclude Counsel from participating in reexamination, reissue proceedings,
`inter partes review proceedings, or post-grant proceedings on behalf of a party challenging or
`defending the validity of any patent, but are intended to preclude patentee’s Counsel from
`participating in the drafting of any claim amendments in reexamination, reissue proceedings, inter
`partes review proceedings, or post-grant proceedings.
`This Prosecution Bar shall begin when the Affected Individual first receives access to the
`“HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY” or “HIGHLY
`CONFIDENTIAL – SOURCE CODE” Information or Item and shall end eighteen (18) months after
`final disposition as set forth in Section 4 (“Duration”).
`9. SOURCE CODE
`(a) To the extent production of source code becomes necessary in this case, a Producing
`Party may designate source code as “HIGHLY CONFIDENTIAL - SOURCE CODE” if it comprises
`or includes confidential, proprietary or trade secret source code.
`(b) Protected Material designated as “HIGHLY CONFIDENTIAL – SOURCE CODE”
`shall be subject to all of the protections aff