Case 1:18-cv-00697-LPS-CJB Document 29 Filed 01/18/19 Page 1 of 37 PageID #: 282
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`3SHAPEA/S,
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`Plaintiff,
`
`V.
`
`ALIGN TECHNOLOGY, INC.
`
`Defendant.
`
`)
`)
`)
`)
`) C.A. No. 18-0697-LPS-CJB
`)
`)
`)
`)
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`STIPULATED PROTECTIVE ORDER
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`IT IS HEREBY STIPULATED AND AGREED, pursuant to Rule 26(c) of the Federal
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`Rules of Civil Procedure and subject to the approval of the Court, by and between the parties
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`and by their respective undersigned counsel, that this Stipulation and Order shall govern the
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`handling of documents, depositions, deposition exhibits, interrogatory responses, admissions,
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`and any other information produced, given, or exchanged by and among the parties and any
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`non-:-parties in the above-captioned action.
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`Accordingly, based . upon the agreement of the parties, IT IS HEREBY ORDERED
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`pursuant to Rule 26(c) of the Federal Rules of Civil Procedure that the following Procedures
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`shall be adopted for the protection of confidential and proprietary information:
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`PROCEDURES FOR PROTECTION OF CONFIDENTIAL
`AND PROPRIETARY INFORMATION
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`1.
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`DEFINITIONS
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`1.1.
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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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`1.2.
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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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`1.3.
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`Counsel (without qualifier): Outside Counsel of Record (as well as their support
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`staff).
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`1.4. 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 "CONFIDENTIAL," "HIGHLY
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`CONFIDENTIAL ATTORNEYS' EYES ONLY," or "HIGHLY CONFIDENTIAL SOURCE
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`CODE-ATTORNEYS' EYES ONLY."
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`1.5. 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
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`things, testimony, transcripts, and tangible things), that are produced or generated in
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`disclosures or responses to discovery in the above-captioned action.
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`1.6.
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`Expert: a person with specialized knowledge or experience in a matter pertinent to
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`the instant litigation who: (1) has been retained by a Party or its Counsel to serve as an expert
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`witness or as a consultant in the above-captioned action; (2) is not a current employee of a Party
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`or of a Party's competitor; and (3) at the time of retention, is not anticipated to become an
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`employee of a Party or of a Party's competitor.
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`1.7.
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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
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`another Party or Non-Party would create a substantial risk. of serious harm that could not be
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`avoided by less restrictive means.
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`1.8.
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`"HIGHLY CONFIDENTIAL SOURCE CODE-ATTORNEYS' EYES ONLY"
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`Information or Items: material of a Designating Party or of any Non-Party that a Producing Party
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`is permitted to produce in this litigation that constitutes or contains non-public Source Code.
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`1.9.
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`In-House Counsel: attorneys who are employees of a Party to the above-captioned
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`action. In-House Counsel does not include Outside Counsel of Record or any other outside
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`counsel.
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`1.10. Non-Party: any natural person, partnership, corporation, association, or other legal
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`entity not named as a Party to the above-captioned action.
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`1.11. Outside Counsel of Record: attorneys of a law firm which has appeared on behalf
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`of that Party in this instant litigation and their support staffs.
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`1.12. ~ : a party to the above-captioned action, including all of its officers, directors,
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`and employees.
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`1.13. Producing Party: a Party or Non-Party, that produces Disclosure or Discovery
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`Material in the above-captioned action.
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`1.14. Professional Vendors: persons or entities that provide litigation support services
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`( e.g., photocopying, videotaping,
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`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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`1.15. Protected Material: any Disclosure or Discovery Material that is designated as
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`"CONFIDENTIAL," "HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY," or
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`"HIGHLY CONFIDENTIAL SOURCE CODE-ATTORNEYS' EYES ONLY."
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`1.16. Receiving Party: a Party or Non-Party that receives Disclosure or Discovery
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`Material from a Producing Party.
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`1.17. Source Code: source code, object code (i.e., computer instructions and data
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`definitions expressed in a form suitable for input to an assembler, compiler, or other translator),
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`any text written in any high-level programming language defining firmware and/or software
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`functionalities implemented on an integrated circuit, microcode, register transfer language
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`("RTL"), firmware, and hardware description language ("HDL"), as well as any and all notes,
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`annotations, and other comments of any type related thereto and accompanying the code. For
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`avoidance of doubt, this includes source files, make files, intermediate output files, executable
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`files, header files, resource files, library files, module definition files, map files, object files,
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`linker files, browse info files, and debug files.
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`2.
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`COMPUTATION OF TIME
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`The computation of any period of time prescribed or allowed by this Order shall be
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`governed by the provisions for computing time set forth in Federal Rule of Civil Procedure 6.
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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 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,
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`provided such information enters the public domain by means not involving a violation of this
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`Order or other duty of confidentiality; and (b) any information known to the Receiving Party
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`prior to the disclosure that the Receiving Party can demonstrate was already known prior to the
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`time of disclosure, was obtained lawfully, and was obtained by means not involving a violation
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`of this Order or any other duty of confidentiality.
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`Any use of Protected Material at trial shall be governed by a separate agreement or order.
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`4.
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`DURATION
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`The confidentiality obligations imposed by this Order shall remain in effect even after
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`final disposition of the above-captioned action unless otherwise provided herein. Final
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`disposition shall be deemed to be the later of (1) dismissal of all claims and defenses in an
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`action, with or without prejudice; and (2) final judgment herein after the completion and
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`exhaustion of all appeals, rehearings, remands, trials, or reviews of that action, including the time
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`limits for filing any motions or applications for extension of time pursuant to applicable law.
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`5.
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`DESIGNATING PROTECTED MATERIAL
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`5.1.
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`Exercise of Restraint and Care in Designating Material for Protection. Each
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`Designating Party that designates information or items for protection under this Order must take
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`care to limit any such designation to material that qualifies under the appropriate standards. If it
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`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 in its respective action that
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`it is withdrawing the 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., subsection 5.2.1 below), or as otherwise stipulated or ordered, Disclosure or Discovery
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`Material that qualifies for protection under this Order must be clearly so designated at the time
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`the material is disclosed or produced. Designation in conformity with this Order requires:
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`5.2.1. For information in documentary form (e.g., paper or electronic documents,
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`but excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing
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`.,.
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`Party affix the legend "CONFIDENTIAL," or "HIGHLY CONFIDENTIAL ATTORNEYS'
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`EYES ONLY," or "HIGHLY CONFIDENTIAL SOURCE CODE-ATTORNEYS' EYES
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`ONLY" to each page that contains protected material. A Party or Non-Party that makes original
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`documents or materials available for inspection need not designate them for protection until after ·
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`the inspecting Party has indicated which material it would like copied and produced. During the
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`inspection and before the designation, all of the material made available for inspection shall be
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`deemed "HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY" or, where applicable
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`"HIGHLY CONFIDENTIAL SOURCE CODE-ATTORNEYS' EYES ONLY." After the
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`inspecting Party has identified the documents it wants copied and produced, the Producing Party
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`must determine which documents, or portions thereof, qualify for protection under this Order.
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`Then, before producing the specified documents, the Producing Party must affix the appropriate
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`legend ("CONFIDENTIAL," "HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY," or
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`"HIGHLY CONFIDENTIAL SOURCE CODE-ATTORNEYS' EYES ONLY") to each page
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`that contains Protected Material.
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`5.2.2. For testimony given in deposition, the Designating Party may indicate on
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`the record that it is protected at the time it is given in accord with the Federal Rules of Civil
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`Procedure. The Designating Party shall indicate the level of protection at the time of
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`designation. The use of a document as an exhibit at a deposition shall not in any way affect its
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`designation as "CONFIDENTIAL," "HIGHLY CONFIDENTIAL ATTORNEYS' EYES
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`ONLY," or "HIGHLY CONFIDENTIAL SOURCE CODE-ATTORNEYS' EYES ONLY."
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`Transcripts containing Protected Material shall have an obvious legend on the title page that the
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`transcript contains Protected Material and that specifies the level of protection being asserted by
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`the Designating Party. The title page may be followed by a list of all pages (including line
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`,,.
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`: !
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`numbers as appropriate) that have been designated as Protected Material. The Designating Party
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`shall inform the court reporter of these requirements.
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`5.2.3. For information produced in some form other than documentary and for
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`any other tangible items, that the Producing Party affix in a prominent place on the exterior of
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`the container or containers
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`in which the
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`information or
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`item
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`is stored the
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`legend
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`"CONFIDENTIAL," "HJGHL Y CONFIDENTIAL ATTORNEYS' EYES ONLY," or
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`"HIGHLY CONFIDENTIAL SOURCE CODE-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.
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`5.3.
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`Inadvertent Failures to Designate. If timely corrected after recognition by a
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`Producing Party of an inadvertent failure to designate, an inadvertent failure to designate
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`qualified information or items does not, standing alone, waive the Producing Party's right to
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`secure protection under this Order for such material. Upon discovering the inadvertent failure to
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`designate, the Producing Party shall immediately notify the Receiving Party in writing and
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`provide replacement copies with the appropriate confidentiality designation. After receiving such
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`notice, the Receiving Party must make reasonable efforts to ensure that the material is treated in
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`accordance with the provisions of this Order. To the extent the Receiving Party has disclosed the
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`Protected Material to any person, or in any circumstance, not authorized under this Stipulated
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`Protective Order, the Receiving Party shall follow the requirements of Section 9.
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`5.4.
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`Right to Seek Additional Protections. This Order is entered without prejudice to
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`the right of any Party to seek additional protections from the Court as may be necessary under
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`particular circumstances.
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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. 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 provide written notice of each
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`designation it is challenging and describing the basis for each challenge. The parties shall
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`attempt to resolve each challenge in good faith and must begin the process by conferring within
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`seven (7) calendar days of the date of service of notice as required by Local Rule 7 .1.1. 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.
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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 Challenging Party shall contact the Court pursuant to Section S(g) of the
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`Scheduling Order.
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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. Absent further Order from the Court, the Receiving Party may
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`only use Protected Material that is disclosed or produced by another Designating Party in
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`connection with the above-captioned action for prosecuting, defending, or attempting to settle
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`that action. Such Protected Material may be disclosed only to the categories of persons and under
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`the conditions described in this Order.
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`7 .1.1. Protected Material must be stored and maintained by a Receiving Party at
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`a location and in a secure manner that ensures that access is limited to the persons authorized
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`under this Order.
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`7.1.2. A Receiving Party shall not use, rely upon, or refer to another Party's or
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`Non-Party's Protected Material in (1) drafting or amending claims in a U.S. or foreign patent
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`application, or assisting or advising another to do the same; or (2) drafting or amending claims in
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`any inter partes review, ex parte reexamination, reissue proceeding, or other post-grant review
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`process at the USPTO or any proceeding before the patent office of a foreign country, or
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`assisting or advising another to do the same.
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`7.1.3. Patent Prosecution Bar. Any attorney, patent agent, expert, or other
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`person who has subscribed to the Stipulated Protective Order on behalf of any party in this
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`litigation or has otherwise accessed technical material designated by another party as
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`"CONFIDENTIAL," "HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY," "HIGHLY
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`CONFIDENTIAL SOURCE CODE-ATTORNEYS' EYES ONLY," "CONFIDENTIAL
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`BUSINESS
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`INFORMATION
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`SUBJECT
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`TO
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`PROTECTIVE ORDER"
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`and/or
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`"CONFIDENTIAL SOURCE CODE-ATTORNEYS' EYES ONLY INFORMATION" which
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`relates to the structure, operation, function, design, or development of any existing or potential
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`product shall not be involved in Patent Prosecution on behalf of the party represented by that
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`person in this litigation or one of such party's affiliates relating to the subject matter of intraoral
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`scanners and software related to the functioning of such scanners before any foreign or domestic
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`agency, including the United States Patent and Trademark Office. For the purposes of this
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`paragraph, "Patent Prosecution" shall be defined as substantive patent prosecution activities
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`involving "competitive decision making" as set forth by the Federal Circuit in In re Deutsche
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`Bank Trust Co. Americas, 605 F.3d 1373, 1378 (Fed. Cir. 2010), such as supervising, assisting or
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`participating in (including preparing, drafting, amending, filing, or otherwise prosecuting
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`applications, claims, responses to office actions, oaths or declarations, or any other paper) the
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`prosecution of any pending or future patent application before the United States Patent and
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`Trademark Office or any other patent foreign or domestic authorities, with respect to any patent
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`application of the represented party claiming (in whole or in part) any of the subject matter set
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`forth above. "Patent Prosecution" shall not include representing a party or otherwise
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`participating in reissue proceedings, ex parte reexamination, inter partes review, covered
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`business method review, or post-grant review proceedings, provided such representation or other
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`participation in such proceedings does not include any involvement in seeking amendment of
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`any claims on behalf of the represented party. This prohibition on Patent Prosecution shall end
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`two (2) years after the earlier of (i) the final resolution or termination of this litigation, including
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`all appeals, (ii) the complete settlement of all claims in this litigation and completion of the
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`requirements of this agreement, or (iii) the withdrawal of that attorney from the Protective Order.
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`This prosecution bar is personal to the person subscribing to the Protective Order in this
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`litigation and shall not be imputed to any other person or entity.
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`7.2. 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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`only disclose any information or item designated "CONFIDENTIAL" to:
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`7.2.1. The Receiving Party's Outside Counsel of Record in the action in which it
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`is produced, as well as employees of said Outside Counsel of Record to whom it is reasonably
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`necessary to disclose the information for this particular litigation.
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`7.2.2. Experts of the Receiving Party (1) to whom disclosure is reasonably
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`necessary for the litigation in which said information is produced; and (2) who have signed the
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`"Acknowledgment and Agreement to Be Bound" (Exhibit A).
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`7.2.3. The Court, jury, and court personnel.
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`7.2.4. Court reporters and their staff, professional jury or trial consultants, and
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`Professional Vendors to whom disclosure is reasonably necessary for the litigation in which it is
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`produced.
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`7.2.5. During their depositions, witnesses in the action to whom disclosure is
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`reasonably necessary, unless otherwise agreed by the Designating Party or ordered by the court.
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`Exhibits to depositions that reveal Protected Material must be separately bound by the court
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`reporter and may not be disclosed to anyone except as permitted under this Stipulated Protective
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`Order.
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`7.2.6. 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 or is employed by
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`the Designating Party.
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`7.3. 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 only disclose any information or item designated
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`"HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY" to:
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`7.3.1. The Receiving Party's Outside Counsel of Record in the action in which it
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`is produced, as well as employees of said Outside Counsel of Record to whom it is reasonably
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`necessary to disclose the information in this particular litigation.
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`7.3.2. Experts of the Receiving Party (1) to whom disclosure is reasonably
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`necessary for the litigation in which such information is produced and (2) who have signed the
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`"Acknowledgment and Agreement to Be Bound" (Exhibit A).
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`7.3.3. The Court, jury, and court personnel.
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`7.3.4. Court reporters and their staff, professional jury or trial consultants, and
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`Professional Vendors to whom disclosure is reasonably necessary for the litigation in which it is
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`produced.
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`7.3.5. 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 or is employed by
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`the Designating Party.
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`7.4. Disclosure of "HIGHLY CONFIDENTIAL SOURCE CODE-ATTORNEYS'
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`EYES ONLY"
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`Information or
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`Items.
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`Information or
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`items designated "HIGHLY
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`CONFIDENTIAL SOURCE CODE-ATTORNEYS' EYES ONLY" are subject to the provisions
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`of Section 8, below.
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`7.5. Advice to Clients: It is understood that Outside Counsel of Record for a Party
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`may give advice and opinions to his or her client based on his or her evaluation of information
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`designated "CONFIDENTIAL," "HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY,"
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`or "HIGHLY CONFIDENTIAL SOURCE CODE-ATTORNEYS' EYES ONLY" that is
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`provided from the opposing Party to such Outside Counsel of Record this action, provided that
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`such rendering of advice and opinions shall not reveal the content of such information, except by
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`prior written agreement with counsel for the Producing Party.
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`8.
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`DISCLOSURE AND REVIEW OF SOURCE CODE
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`8.1. A Designating Party may designate documents, information, or things as
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`"HIGHLY CONFIDENTIAL SOURCE CODE-ATTORNEYS' EYES ONLY," which shall
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`mean material of a Designating Party or of any Non-Party that a Producing Party is permitted to
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`produce in this litigation that constitutes or contains non-public Source Code.
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`8.2. Materials designated as "HIGHLY CONFIDENTIAL SOURCE CODE-
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`ATTORNEYS' EYES ONLY" shall only be reviewable by SOURCE CODE QUALIFIED
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`PERSONS. SOURCE CODE QUALIFIED PERSONS include the following: (1) Outside
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`Counsel of Record and staff employed by such litigation counsel as necessarily incident to the
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`litigation; (2) personnel at interpretation/translation service establishments retained by, but not
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`regularly employed by, outside litigation counsel as necessarily incident to the litigation of this
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`litigation, including without limitation oral interpreters and document translators; (3) the Court,
`
`the Judge, the Court Staff, Court personnel and contract personnel who are acting in the capacity
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`of Court employees; ( 4) court reporters, stenographers and videographers transcribing or
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`recording testimony at depositions, hearings or trial in this litigation; (5) Experts in this
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`litigation, subject to the provisions of paragraph 8.2.1, below; (6) a Designating Party's
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`employees, 30(b)(6) witnesses, or Experts designated by the Designating Party. The Designating
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`Party and the Receiving Party may meet and confer to discuss other potential categories of
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`SOURCE CODE QUALIFIED PERSONS.
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`8.2.1. Experts may only review "HIGHLY CONFIDENTIAL SOURCE CODE(cid:173)
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`ATTORNEYS' EYES ONLY" Information after being expressly identified to the Designating
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`Party as seeking access to HIGHLY CONFIDENTIAL SOURCE CODE.-
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`8.2.1.1. No less than seven (7) calendar days prior to the initial disclosure to an
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`Expert of any
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`"HIGHLY CONFIDENTIAL SOURCE CODE
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`ATTORNEYS' EYES ONLY" information, the Receiving Party shall submit
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`in writing the name of such Expert and his or her educational and detailed
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`employment history to the Designating Party. If the Designating Party objects
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`to the disclosure of such "HIGHLY CONFIDENTIAL SOURCE CODE(cid:173)
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`ATTORNEYS' EYES ONLY" Information to such Expert as inconsistent 'Yith
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`the language or intent of this Order or on other grounds, it shall notify the
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`Receiving Party in writing of its objection and the grounds therefore prior to
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`the initial disclosure. If the dispute is not resolved on an informal basis after
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`meeting and conferring as required by Local Rule 7 .1.1 within seven (7) days
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`of receipt of such notice of objections, the Parties may seek guidance from the
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`Court.
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`The disclosure of
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`information designated
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`as
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`"HIGHLY
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`CONFIDENTIAL SOURCE CODE-ATTORNEYS' EYES ONLY" shall be
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`withheld to such Expert pending resolution of the dispute.
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`8.3.
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`Source Code shall be provided with the following additional protections:
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`8.3.1. Nothing in this Protective Order shall obligate the parties to produce any
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`Source Code, nor act as an admission that any particular Source Code is discoverable.
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`8.3.2. Access to Source Code will be given only to SOURCE CODE
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`QUALIFIED PERSONS.
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`8.3.3. Access to Source Code shall be provided on no more than two "stand(cid:173)
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`alone" computer(s) (i.e., the stand-alone secure computer(s) may not be linked to any network,
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`including a local area network ("LAN"), an intranet, or the Internet, and may not be connected to
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`any printer or storage device other than the internal hard disk drive of the stand-alone secure
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`computer(s) without the consent of the Designating Party). The stand-alone secure computer(s)
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`shall be kept in a secure location at the offices of the Designating Party's Outside Counsel of
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`Record, or at such other location as the Designating Party and Receiving Party mutually agree.
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`The stand-alone secure computer(s) may be password protected and shall have the Source Code
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`stored on a hard drive contained inside the stand-alone secure computer(s) or, at the Designating
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`Party's election, otherwise accessible on the stand-alone secure computer(s). The stand-alone
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`secure computer(s) may be locked down so that additional peripheral devices cannot be
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`connected to the stand-alone secure computer(s) by the receiving party. The Designating Party
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`shall produce Source Code in computer searchable format on the stand-alone secure computer(s).
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`The stand-alone secure computer(s) shall, at the Receiving Party's request, include reasonable
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`analysis tools appropriate for the type of Source Code. The Receiving Party shall be responsible
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`for providing the tools or licenses to the tools that it wishes to use to the Designating Party so
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`that the Designating Party may install such tools on the stand-alone secure computer(s). The
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`Receiving Party must provide the supplying party with the licensed software tool(s) at least
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`seven (7) calendar days in advance of the date upon which the Receiving Party wishes to have
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`the software tools available for use on the stand-alone secure computer. The Receiving Party
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`shall not at any time attempt or request the installation of any compilers, interpreters, or
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`simulators in connection with the supplying party's Source Code. To the extent that such tools
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`record local working files or other records reflecting the work performed by the Receiving Party,
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`such files and records shall not be reviewed, altered, or deleted by the Designating Party.
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`8.3.4. The Receiving Party shall provide at least three (3) business days' notice
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`to access the source code and make reasonable efforts to restrict its requests for access to the
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`stand-alone secure computer(s) to normal business hours, which for purposes of this paragraph
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`shall be 9:00 a.m. through 5:30 p.m. local time at the reviewing location. Upon reasonable
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`notice from the receiving party, which shall not be less than five (5) business days in advance,
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`the Designating Party shall make reasonable efforts to accommodate the receiving · party's
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`request for access to the stand-alone secure computer(s) outside of normal business hours. Such
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`an expanded review period shall not begin earlier than 8:00 a.m. and shall not end later than 8:00
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`p.m. local time at the reviewing location. The parties are to cooperate in good faith such that
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`maintaining the Source Code at the offices of the Designating Party' s outside litigation counsel
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`shall not unreasonably hinder the receiving party's ability to efficiently conduct the prosecution
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`or defense in this litigation. Proper identification of all SOURCE CODE QUALIFIED
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`PERSONS shall be provided prior to any access to the standalone secure computer(s).
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`8.3.5. All SOURCE CODE QUALIFIED PERSONS who will review Source
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`Code on behalf of a receiving party shall be identified in writing to the Designating Party at least
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`seven (7) calendar days in advance of the time that such person reviews such Source Code. The
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`Designating Party shall provide these individuals with information explaining how to start, log
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`on to, and operate the stand-alone secure computer(s) in order to access the produced Source
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`Code on the stand-alone secure computer(s). For subsequent reviews by SOURCE. CODE
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`QUALIFIED PERSONS, the receiving party shall give at least three business days (and at least
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`72 hours) notice to the Designating Party of such review. Advance notice for a subsequent
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`review shall be sufficient when provided by 1 :00 p.m. (local time at the location of the stand(cid:173)
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`alone secure computer(s)) during the course of a review session, for such review to continue on
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`the next subsequent business day.
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`8.3.6. No person other than the Designating Party may alter, dismantle,
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`disassemble or modify the stand-alone secure computer(s) in any way, or attempt to circumvent
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`any security feature of the stand-alone secure computer(s).
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`8.3.7. No copies shall be made of Source Code, whether physical, electrpnic, or
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`otherwise, other than volatile copies necessarily made in the normal course of accessing the
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`Source Code on the stand-alone secure computer(s), except for: (1) print outs of reasonable
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`portions of the Source Code; and (2) such other uses to which the parties may agree or that the
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`Judge or Court may order. The Receiving Party shall not use any outside electronic device to
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`copy, record, photograph, or otherwise reproduce Source Code. "Reasonable portions of the
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`Source Code" shall be limited to the portions that are necessary to understand a relevant feature
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`of an accused product in this litigation. The Designating Party shall not unreasonably withhold
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`approval and the parties shall meet and confer in good faith to resolve any disputes. The
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`Receiving Party may not bring any electronic devices into the secured review room, including
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`but not limited to, cameras, video recording equipment, sound recording equipment,
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`smartphones, tablets, cellular telephones, laptops or computers, floppy drives, CDs, DVDs, USB(cid:173)
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`connectable devices, zip drives or any drives of any kind, peripheral equipment and/or other
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`electronic recording media. The Receiving Party may take notes related to the Source Code, so
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`long as such notes are clearly designated and treated as HIGHLY CONFIDENTIAL
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`ATTORNEYS' EYES ONLY or HIGHLY CONFIDENTIAL SOURCE CODE-ATTORNEYS'
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`EYES ONLY (as appropriate dependin