Case 1:17-cv-00386-VAC-CJB Document 45 Filed 03/20/18 Page 1 of 30 PageID #: 336
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 17-386 (VAC)(CJB)
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`JURY TRIAL DEMANDED
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`TECHNO VIEW IP, INC.,
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`Plaintiff,
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`v.
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`OCULUS VR, LLC and )
`FACEBOOK, INC.,
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`)
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`Defendants.
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` )
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`STIPULATED PROTECTIVE ORDER
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`WHEREAS, it may be necessary or desirable to take discovery of information which is
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`believed to be confidential and proprietary by the holder thereof; and
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`WHEREAS, the parties hereto desire to obtain a protective order to prevent
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`dissemination and unnecessary disclosure of such information on the public record;
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`WHEREAS, such information likely will include, among other things, information about
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`sensitive products and/or services, proprietary design and development materials of products
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`and/or services, source code, strategic decision-making information, and marketing and sales
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`information;
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`IT IS HEREBY STIPULATED, and subject to the Court’s approval, pursuant to Federal
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`Rules of Civil Procedure, Rule 26(c), that the following provisions shall govern the handling of
`such confidential information and documents in these proceedings.
`PURPOSES AND LIMITATIONS
`1.
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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
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`disclosure and from use for any purpose other than prosecuting this litigation may be warranted.
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`Accordingly, the parties hereby stipulate to the following Stipulated Protective Order. The
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`parties acknowledge that this Order does not confer blanket protections on all disclosures or
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`responses to discovery and that the protection it affords from public disclosure and use extends
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`only to the limited information or items that are entitled to confidential treatment under the
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`applicable legal principles.
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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
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`of Civil Procedure 26(c).
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`2.4
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`Counsel (without qualifier): Outside Counsel of Record (as well as their support
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`staff) and In-House Counsel (as well as their support staff).
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`2.5
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`Designating Party: a Party or Non-Party that designates information or items that
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`it produces in disclosures or in responses to discovery as
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`a) “CONFIDENTIAL,”
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`b) “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,”
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`c) “HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY,” or
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`d) “HIGHLY CONFIDENTIAL – SOURCE CODE – OUTSIDE ATTORNEYS’ EYES
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`ONLY.”
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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
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`to the litigation who (1) has been retained by a Party or its Counsel to serve as an expert witness
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`or as a consultant in this action subject to Section 7.5, below (2) is not a current employee of a
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`Party, an affiliated business entity of a Party, or a Party’s competitor, and (3) at the time of
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`retention, is not anticipated to become an employee of a Party, an affiliated business entity of a
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`Party, or a Party’s competitor.
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`2.8
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`“HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY”
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`Information or Items: extremely sensitive “Confidential Information or Items,” disclosure of
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`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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`2.9
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`“HIGHLY CONFIDENTIAL – SOURCE CODE – OUTSIDE ATTORNEYS’
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`EYES ONLY” Information or Items: extremely sensitive “Confidential Information or Items”
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`comprising computer Source Code and associated comments and revision histories, formulas,
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`engineering specifications, or schematics that define or otherwise describe in detail the
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`algorithms or structure of software or hardware designs, the disclosure of which to another Party
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`or Non-Party would create a substantial risk of serious harm that could not be avoided by less
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`restrictive means.
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`2.11
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`In-House Counsel: attorneys who are employees of a Party to this action. In-
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`House Counsel does not include Outside Counsel of Record or any other outside counsel.
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`2.12 Non-Party: any natural person, partnership, corporation, association, or other
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`legal entity not named as a Party to this action.
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`2.13 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 including Counsel who have
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`appeared in this action on behalf of that Party or are employed by a law firm that has appeared
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`on behalf of that Party.
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`2.14 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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`2.15 Producing Party: a Party or Non-Party that produces Disclosure or Discovery
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`Material in this action.
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`2.16 Professional Vendors: persons or entities that provide litigation support services
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`(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and
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`organizing, storing, or retrieving data in any form or medium) and their employees and
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`subcontractors.
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`2.17 Protected Material: any Disclosure or Discovery Material that is designated as
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`“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY,
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`or as “HIGHLY CONFIDENTIAL – SOURCE CODE – OUTSIDE ATTORNEYS’ EYES
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`ONLY.”
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`2.18 Receiving Party: a Party that receives Disclosure or Discovery Material from a
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`Producing Party.
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`2.19 Source Code: computer instructions, data structures, and data definitions
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`expressed in a form suitable for input to an assembler, compiler, translator, or other data
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`processing module. Source Code may include graphical and design elements and may be
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`included in structured files in formats including, but not limited to, HTML, XML, XSL, and
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`SGML.
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`3.
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`SCOPE
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`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)
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`all 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 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:
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`(a) any information that is in the public domain at the time of disclosure to a Receiving
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`Party or becomes part of the public domain after its disclosure to a Receiving Party as a result of
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`publication not involving a violation of this Order, including becoming part of the public record
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`through trial or otherwise; and
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`(b) any information known to the Receiving Party prior to the disclosure or obtained by
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`the Receiving Party after the disclosure from a source who obtained the information lawfully and
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`under no obligation of confidentiality to the Designating Party. However, if the accuracy of
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`information is confirmed only through the review of Protected Material, then the fact that such
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`information is accurate, and any additional details that are not publicly available learned from
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`review of Protected Material, shall not be considered to be in the public domain. As an example,
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`this would apply to the confirmation through access to Protected Material of unsubstantiated
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`media speculations or rumors (e.g., statements and articles speculating about an unreleased
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`product that are only capable of being confirmed to be accurate through review of Protected
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`Material). The fact that such speculations are actually accurate and any additional details
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`gleaned from Protected Material would not be “public domain” information, and such
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`information is explicitly included in the definition of “Protected Material” set forth above. For
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`avoidance of doubt, the underlying statements set forth in the publicly available material would
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`still constitute “public domain” information; only the confirmation of accuracy of such
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`statements and additional information learned from Protected Material would be considered
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`Protected Material.
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`4.
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`DURATION
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`Even after final disposition of this litigation, the confidentiality obligations imposed by
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`this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court
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`order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all
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`claims and defenses in this action, with or without prejudice; and (2) final judgment herein after
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`the completion and exhaustion of all appeals, re-hearings, remands, trials, or reviews of this
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`action, including the time limits for filing any motions or applications for extension of time
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`pursuant to applicable law and the time limits for filing a petition for writ of certiorari to the
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`Supreme Court of the United States if applicable. However, any Protected Information that
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`enters the public domain through no fault of the Receiving Party shall no longer be considered
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`confidential or protected, unless a Court with appropriate jurisdiction declares it to be
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`confidential or protected.
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`5.
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`DESIGNATING PROTECTED MATERIAL
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`5.1. DESIGNATING DISCOVERY MATERIAL AS PROTECTED MATERIAL
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`(a) Confidentiality Designation Categories. Any Producing Party may
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`designate Discovery Material with any of the following designations, provided that it meets the
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`requirements for such designations as provided for herein:
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`ONLY”;
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`(1) “CONFIDENTIAL”;
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`(2) “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY;
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`(3) “HIGHLY CONFIDENTIAL - OUTSIDE ATTORNEYS' EYES
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`(4) “HIGHLY CONFIDENTIAL – SOURCE CODE – OUTSIDE
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`ATTORNEYS’ EYES ONLY.”
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`(b)
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`"CONFIDENTIAL" Designation. A Producing Party may designate
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`Discovery Material "CONFIDENTIAL" if the Producing Party has a good faith belief that the
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`Material constitutes or contains confidential technical, sales, marketing, financial, or other
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`commercial information, whether embodied in physical objects, documents, or the factual
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`knowledge of persons, and which has been so designated by the Producing Party.
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`(c)
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`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
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`Designation. A Producing Party may designate Discovery Material “HIGHLY
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`CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY” if the Producing Party has a good
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`faith belief that certain Discovery Material qualifying to be designated CONFIDENTIAL is so
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`sensitive that its dissemination deserves even further limitation, and therefore, access to the
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`limitation should be limited to just the specified Attorneys.
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`(d) "HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY"
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`Designation. A Producing Party may designate Discovery Material "HIGHLY CONFIDENTIAL
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`– OUTSIDE ATTORNEYS' EYES ONLY" if the Producing Party has a good faith belief that the
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`Discovery Material constitutes or contains specific proprietary financial or technical data or
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`information, commercially sensitive competitive information, or trade secrets of a high value
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`nature to the party, including, but not limited to: (i) nonpublic technical information, marketing,
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`sales, financials, web traffic, or research and development data or information, schematic
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`diagrams, technical reference manuals, and operations manuals; (ii) damages-related information
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`(e.g., sale volumes, revenues, profitability), (iii) information obtained from a nonparty pursuant
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`to a current Nondisclosure Agreement ("NDA''); (iv) information or data relating to future
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`products not yet commercially released and/or strategic plans; (v) commercial agreements; (vi)
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`licenses and licensing documentation, (vii) strategic plans; and (viii) settlement agreements or
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`settlement communications, the disclosure of which is likely to cause harm to the competitive
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`position of the Producing Party.
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`(e) "HIGHLY CONFIDENTIAL – SOURCE CODE – OUTSIDE
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`ATTORNEYS’ EYES ONLY" Designation. A Producing Party may designate Discovery
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`Material "HIGHLY CONFIDENTIAL -- SOURCE CODE – OUTSIDE ATTORNEYS’ EYES
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`ONLY " if the Producing Party has a good faith belief that the Discovery Material comprises
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`computer Source Code and associated comments and revision histories, formulas, engineering
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`specifications, or schematics that define or otherwise describe in detail the algorithms or
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`structure of software or hardware designs that the Producing Party believes in good faith is so
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`commercially sensitive or confidential that the disclosure to another Party, even under the
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`restricted terms and conditions applicable to material designated "HIGHLY CONFIDENTIAL-
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`OUTSIDE ATTORNEYS' EYES ONLY" would not provide adequate protection to the interest
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`of the Producing Party.
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`5.2
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`Exercise of Restraint and Care in Designating Material for Protection. Each Party
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`or Non-Party that designates information or items for protection under this Order must take care
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`to limit any such designation to specific material that qualifies under the appropriate standards.
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`To the extent it is practical to do so, the Designating Party must designate for protection only
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`those parts of material, documents, items, or oral or written communications that qualify – so
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`that other portions of the material, documents, items, or communications for which protection is
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`not warranted are not marked without justification within the scope of this Order.
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`If it comes to a Designating Party’s attention that information or items that it designated
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`for protection do not qualify for protection at all or do not qualify for the level of protection
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`initially asserted, that Designating Party must promptly notify all other parties that it is
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`withdrawing the mistaken designation during the term of this Order.
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`5.3 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
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`Party affix the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – OUTSIDE
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`ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE –
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`OUTSIDE ATTORNEYS’ EYES ONLY” to each page that contains Protected Material.
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`Written discovery, documents, and tangible things that meet the requirements for the
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`confidentiality designations set forth in this Order may be so designated by placing the
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`appropriate designation on at least the cover page of the written material prior to production,
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`except for documents produced in native format which shall have the appropriate designation
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`affixed on the face of the media containing such native format documentation. In addition to the
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`foregoing, to the extent that documents are produced in electronic form, the addition of a
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`confidentiality designation in the file name shall be sufficient to provide notice of said
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`confidentiality and additional written notice is unnecessary in this situation. Other tangible
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`things not produced in documentary form may be designated by affixing the appropriate
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`designation on a cover page for such material and in a prominent place on the exterior of the
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`container or containers in which the information or things are stored.
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`(b) for testimony given in deposition or other pretrial or trial proceedings that the
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`Designating Party either (1) identify on the record or (2) identify, in writing, within 7 days of the
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`conclusion of the deposition, that the transcript shall be treated as “CONFIDENTIAL,”
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`“HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY,” or “HIGHLY
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`CONFIDENTIAL – SOURCE CODE – OUTSIDE ATTORNEYS’ EYES ONLY.”
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`Parties shall give the other parties notice if they reasonably expect a deposition or other
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`pretrial or trial proceeding to include Protected Material so that the other parties can ensure that
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`only authorized individuals who have signed the “Acknowledgment and Agreement to Be
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`Bound” (Exhibit A) are present at those proceedings. The use of a document as an exhibit at a
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`deposition or other pretrial or trial proceedings shall not in any way affect its designation as
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`“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES
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`ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE – OUTSIDE ATTORNEYS’
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`EYES ONLY.”
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`Transcripts containing Protected Material shall have an obvious legend on the title page
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`that the transcript contains Protected Material, and the title page shall be followed by a list of all
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`pages that have been designated as Protected Material and the level of protection being asserted
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`by the Designating Party. The Designating Party shall inform the court reporter of these
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`requirements. Any transcript that was not designated on the record pursuant to the first
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`paragraph of section 5.2(b) above shall be treated during the 7-day period for designation as if it
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`had been designated “HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY”
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`in its entirety. After the expiration of the 7 day period or as of such earlier time that such
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`transcript is designated, the transcript shall be treated only as actually designated.
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`Notwithstanding any other provisions in this Order, any individual permitted by the Designating
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`Party to be present at any portion of a deposition may continue to have access to the transcript of
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`those portions of such deposition at which they were present regardless of its interim or ultimate
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`designation.
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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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`or “HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY” or “HIGHLY
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`CONFIDENTIAL – SOURCE CODE – OUTSIDE ATTORNEYS’ EYES ONLY.” If only a
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`portion or portions of the information or item warrant protection, the Producing Party, to the
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`extent practicable, shall identify the protected portion(s) and specify the level of protection being
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`asserted. The Producing Party shall provide an index or listing of such portions and their
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`corresponding designation.
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`(d) for material made available for inspection. If a Producing Party makes
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`Discovery Material available to another Party by allowing access to the Discovery Material for
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`inspection instead of delivering a copy of the material to a Party, the Producing Party may make
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`a temporary designation of all items being inspected as "CONFIDENTIAL" or "HIGHLY
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`CONFIDENTIAL - OUTSIDE ATTORNEYS' EYES ONLY" or "HIGHLY CONFIDENTIAL
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`– SOURCE CODE – OUTSIDE ATTORNEYS' EYES ONLY" if the Producing Party believes
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`in good faith that the Discovery Material made available for inspection may constitute or contain
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`confidential information and is entitled to the level of confidentiality designated. The
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`Producing Party shall inform the Party seeking the inspection in writing in advance of the
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`inspection that Discovery Material made available for inspection shall be treated under the
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`appropriate designation pursuant to this Protective Order. If the Producing Party later produces
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`any temporarily-designated Discovery Material, the Producing Party shall re-designate the
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`material in accordance with terms of this Protective Order, for example, by placing the
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`appropriate legend on any documents during the copying process.
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`5.4
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`Inadvertent Failures to Designate. An inadvertent failure to designate qualified
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`information or items does not waive the Designating Party’s right to secure protection under this
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`Order for such material. Upon correction of a designation, the Receiving Party must make all
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`reasonable efforts to assure that the material is treated in accordance with the provisions of this
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`Order.
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`6.
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`CHALLENGING CONFIDENTIALITY DESIGNATIONS
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`6.1
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`Timing of Challenges. Any Party or Non-Party may challenge a designation of
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`confidentiality at any time. A Party does not waive its right to challenge a confidentiality
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`designation by electing not to mount a challenge promptly after the original designation is
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`disclosed.
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`6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution
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`process by providing written notice of each designation it is challenging and describing the basis
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`for each challenge. To avoid ambiguity as to whether a challenge has been made, the written
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`notice must recite that the challenge to confidentiality is being made in accordance with this
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`specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in
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`good faith and must begin the process by conferring directly (in voice-to-voice dialogue; other
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`forms of communication are not sufficient) within 14 days of the date of service of notice. In
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`conferring, the Challenging Party must explain the basis for its belief that the confidentiality
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`designation was not proper and must give the Designating Party an opportunity to review the
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`designated material, to reconsider the circumstances, and, if no change in designation is offered,
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`to explain the basis for the chosen designation. A Challenging Party may proceed to the next
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`stage of the challenge process only if it has engaged in this meet and confer process first or
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`establishes that the Designating Party is unwilling to participate in the meet and confer process in
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`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 contact the Court in accordance with the Court’s dispute
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`resolution procedures.
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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
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`sanctions. Unless the Designating Party has waived the confidentiality designation by failing to
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`file a letter to retain confidentiality as described above, all parties shall continue to afford the
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`material in question the level of protection to which it is entitled under the Producing Party’s
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`designation until the Court rules on the challenge.
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`7.
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`ACCESS TO AND USE OF PROTECTED MATERIAL
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`7.1
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`Basic Principles. A Receiving Party may use Protected Material that is disclosed
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`or produced by another Party or by a Non-Party in connection with this case only for
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`prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be
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`disclosed only to the categories of persons and under the conditions described in this Order.
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`When the litigation has been terminated, a Receiving Party must comply with the provisions of
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`section 15 below (FINAL DISPOSITION).
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`Protected Material must be stored and maintained by a Receiving Party at a location and
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`in a secure manner that ensures that access is limited to the persons authorized under this Order.
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`Nothing in this Protective Order shall preclude any attorney from providing to their
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`clients an evaluation of any Protected Material produced or exchanged in this litigation,
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`provided, however, that, in rendering such advice and otherwise communicating with their client,
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`Outside Counsel shall not disclose the contents of any Protected Material produced by another
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`Party if such a disclosure would be contrary to the terms of this Protective Order.
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`7.2
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`Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise
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`ordered by the Court or permitted in writing by the Designating Party, a Receiving Party may
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`disclose any 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) In-house Counsel of the Receiving Party to whom disclosure is reasonably
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`necessary for this litigation and who have signed the “Acknowledgment and Agreement to Be
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`Bound” (Exhibit A);
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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
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`Agreement 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 including
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`mock jurors who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A),
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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
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`reasonably necessary, with the consent of the Designating Party or as ordered by the Court.
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`Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected
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`Material must be separately bound by the court reporter and may not be disclosed to anyone
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`except as permitted under this Stipulated Protective Order;
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`(g) the author or recipient of a document containing the information or a
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`custodian or other person who otherwise possessed or knew the information.
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`7.3
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`Disclosure of “HIGHLY CONFIDENTIAL –ATTORNEYS’ EYES ONLY”
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`Information or Items. Unless otherwise ordered by the Court or permitted in writing by the
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`Designating Party, a Receiving Party may disclose any information or item designated
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`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to:
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`(a) the Receiving Party’s Counsel in this action, as well as employees of said Counsel to
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`whom it is reasonably necessary to disclose the information for this litigation;
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`(b) Experts (as defined in this Order) of the Receiving Party,
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`(1) to whom disclosure is reasonably necessary for this litigation,
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`(2) who have signed the “Acknowledgment and Agreement to Be Bound”
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`(Exhibit A), and
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`(c) the Court and its personnel;
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`(d) court reporters and their staff,
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`(e) professional jury or trial consultants including mock jurors who have signed the
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`“Acknowledgment and Agreement to Be Bound” (Exhibit A), and Professional Vendors to
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`whom disclosure is reasonably necessary for this litigation and who have signed the
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`“Acknowledgment and Agreement to Be Bound” (Exhibit A);
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`(f) the author or recipient of a document containing the information or a custodian or
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`other person who otherwise possessed or knew the information; and
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`(g) while testifying at deposition or trial in this action only: (i) any person designated by
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`the producing party to provide testimony pursuant to Rule 30(b)(6) of the Federal Rules of Civil
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`Procedure related to the material in question.
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`7.4
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`Disclosure of “HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES
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`ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE – OUTSIDE ATTORNEYS’ EYES
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`ONLY” Information or Items. Unless otherwise ordered by the Court or permitted in writing by
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`the Designating Party, a Receiving Party may disclose any information or item designated
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`“HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY” or “HIGHLY
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`CONFIDENTIAL – SOURCE CODE – OUTSIDE ATTORNEYS’ EYES ONLY” only to:
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`(a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees
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`of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information
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`for this litigation;
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`(b) Experts (as defined in this Order) of the Receiving Party,
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`(1) to whom disclosure is reasonably necessary for this litigation,
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`(2) who have signed the “Acknowledgment and Agreement to Be Bound”
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`(Exhibit A); and,
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`(3) as to whom the procedures set forth in paragraph 7.5(a), below, have been
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`followed;
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`(c) the Court and its personnel;
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`(d) court reporters and their staff,
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`(e) professional jury or trial consultants including mock jurors who have signed the
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`“Acknowledgment and Agreement to Be Bound” (Exhibit A), and Professional Vendors to
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`whom disclosure is reasonably necessary for this litigation and who have signed the
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`“Acknowledgment and Agreement to Be Bound” (Exhibit A), except that mock jurors shall not
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`be given access to material designated “HIGHLY CONFIDENTIAL – SOURCE CODE –
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`OUTSIDE ATTORNEYS’ EYES ONLY”;
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`(f) the author or recipient of a document containing the information or a custodian or
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`other person who otherwise possessed or knew the information; and
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`(g) while testifying at deposition or trial in this action only: (i) any person designated by
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`the producing party to provide testimony pursuant to Rule 30(b)(6) of the Federal Rules of Civil
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`Procedure related to the material in question; and/or (ii) any person who authored, previously
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`received (other than in connection with this litigation), or was directly involved in creating,
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`modifying, or editing the Source Code, as evident from its face or reasonably certain in view of
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`other testimony or evidence. Persons authorized to view Source Code pursuant to this sub-
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`paragraph shall not retain or be given copies of the Source Code except while so testifying or
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`preparing to provide such testimony.
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`7.5
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`Procedures for Objecting to Disclosure of “CONFIDENTIAL,” “HIGHLY
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” “HIGHLY CONFIDENTIAL – OUTSIDE
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`ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE – OUTSIDE
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`ATTORNEYS’ EYES ONLY” Information or Items.
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`(a) Unless otherwise ordered by the Court or agreed to in writing by the Designating
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`Party, a Party that seeks to disclose to an Expert (as defined in this Order) any information or
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`-15-
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