Case 1:19-cv-02225-RGA Document 52 Filed 04/13/20 Page 1 of 39 PageID #: 2336
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 19-2225 (RGA)
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`ANALOG DEVICES, INC.,
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`Plaintiff,
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`v.
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`XILINX, INC.,
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`Defendant.
`XILINX, INC. and
`XILINX ASIA PACIFIC PTE. LTD.,
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`Counterclaim Plaintiffs,
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`v.
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`ANALOG DEVICES, INC
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`Counterclaim Defendant.
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`STIPULATED PROTECTIVE ORDER
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`Disclosure and discovery in this action (the “Litigation”) are likely to involve the production
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`of confidential, proprietary, or private information for which special protection from public
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`disclosure may be warranted. Accordingly, the parties hereby stipulate to and petition the Court to
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`enter the following Stipulated Protective Order. The parties acknowledge that this Stipulated
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`Protective Order does not confer blanket protections on all disclosures or responses to discovery, and
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`that the protection it affords from public disclosure and use extends only to the limited information
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`or items that are entitled to confidential treatment under the applicable legal principles.
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`DEFINITIONS
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`1.
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`“Affiliate” means any Third Party that, directly or indirectly through one or more
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`intermediaries, controls, is controlled by, or is under common control with a Party to this Litigation.
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`2.
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`“Asserted ADI Patents” means United States Patent Nos. 7,719,452; 7,663,518;
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`6,900,750; 10,250,250; 7,274,321; 7,012,463; 8,487,659; 7,286,075; and/or any other patent
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`asserted by ADI in this action.
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`3.
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`“Asserted Xilinx Patents” means United States Patent Nos. 6,975,132; 7,015,838;
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`7,088,767; 7,116,251; 7,187,709; 7,224,184; 7,280,590; 8,548,071; and/or any other patent that
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`Xilinx asserts in this action.
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`4.
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`“CONFIDENTIAL” means information (regardless of how it is generated, stored, or
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`maintained) or tangible things that qualify for protection under Fed. R. Civ. P. 26(c); and includes
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`confidential and proprietary information about a Third Party, including parents, subsidiaries, and/or
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`other Affiliates.
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`5.
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`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” means highly
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`sensitive information, disclosure of which to another Party or Third Party would create a substantial
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`risk of serious harm that could not be avoided by less restrictive means.
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`6.
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`“HIGHLY CONFIDENTIAL – SOURCE CODE/DESIGN FILES” means
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`confidential or proprietary (1) source code and (2) native circuit design files, disclosure of which to
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`another Party or Third Party would create a substantial risk of serious harm that could not be avoided
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`by less restrictive means.
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`7.
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`“CONFIDENTIAL Discovery Material” means Discovery Material a Producing Party
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`designates as CONFIDENTIAL pursuant to the terms of this Protective Order. “HIGHLY
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY Discovery Material” means Discovery Material a
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`Producing Party designates as HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY pursuant
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`to the terms of this Protective Order. “HIGHLY CONFIDENTIAL – SOURCE CODE/DESIGN
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`FILES Discovery Material” means Discovery Material a Producing Party designates as “HIGHLY
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`2
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`CONFIDENTIAL – SOURCE CODE/DESIGN FILES” pursuant to the terms of this Protective
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`Order.
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`8.
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`“Discovery Material” means all documents, testimony, pleadings, exhibits, and all
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`other material or information produced or disclosed in this Litigation, including responses to
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`requests for production of documents and/or things, answers to interrogatories, responses to requests
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`for admissions, documents and things made available for inspection, deposition testimony, expert
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`testimony and reports, and all other discovery taken pursuant to the Federal Rules of Civil
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`Procedure, including Third Party discovery pursuant to Rule 45, matters in evidence, and any other
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`information hereafter furnished, directly or indirectly, by or on behalf of any Party, Third Party, or
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`witness in connection with this Litigation. This Protective Order and protections herein shall apply
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`to all Discovery Material.
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`9.
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`“Expert” means a person with specialized knowledge or experience in a matter
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`pertinent to this Litigation who has been retained by a Party or its In-House Counsel or Outside
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`Counsel to serve as an expert witness or as a consultant in this Litigation who, at the time of
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`retention, is not an officer, director, or employee of a Party or an Affiliate and is not anticipated to
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`become an officer, director, or employee of a Party or an Affiliate. Nothing in this Protective Order
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`purports
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`to alter
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`in any way
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`the
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`requirements
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`for offering
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`testimony under
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`Fed. R. Evid. 703, or to define the term “expert” for purposes other than those addressed in this
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`Protective Order.
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`10.
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`“Outside Counsel” means any attorney from a law firm that has made a formal
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`appearance as counsel of record for a Party in this Litigation and who is not an employee of a Party
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`or of an Affiliate.
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`3
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`11.
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`“In-House Counsel” means attorneys who are employees of a Party to this action. In-
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`House Counsel does not include Outside Counsel.
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`12.
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`13.
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`“Party” means a party to this Litigation.
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`“Producing Party” means any Party or any Third Party who produces or otherwise
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`discloses, whether through formal or informal means, Discovery Material in this Litigation.
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`14.
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`“Professional Vendor(s)” means persons or entities that provide litigation support
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`services (e.g., photocopying, audio or video recording, translating, preparing exhibits or
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`demonstrations, and organizing, storing, or retrieving data in any form or medium) and their
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`employees and subcontractors.
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`15.
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`16.
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`“Protective Order” means this Stipulated Protective Order.
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`“Protected Material” means any Discovery Material that is designated as
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`CONFIDENTIAL, HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY, or HIGHLY
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`CONFIDENTIAL – SOURCE CODE/DESIGN FILES.
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`17.
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`“Receiving Party” means any Party that receives Discovery Material produced or
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`otherwise disclosed by any Producing Party.
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`18.
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`“Third Party” means a person or entity that is not a Party.
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`DESIGNATION
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`19.
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`Any Producing Party may designate Discovery Material as CONFIDENTIAL,
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`HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY, or HIGHLY CONFIDENTIAL –
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`SOURCE CODE/DESIGN FILES in accordance with this Protective Order if such party in good
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`faith believes that such Discovery Material contains CONFIDENTIAL, HIGHLY CONFIDENTIAL
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`– ATTORNEYS’ EYES ONLY, or HIGHLY CONFIDENTIAL – SOURCE CODE/DESIGN
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`FILES information, respectively, as defined in Paragraphs 4, 5, and 6.
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`4
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`20.
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`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 and documents filed with a
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`legend pursuant to Paragraph 24), designation in conformity with this Protective Order requires that
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`the Producing Party affix the legend “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE/DESIGN
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`FILES” to each page that contains Protected Material, or, if not practicable, as otherwise agreed by
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`the Parties.
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`21.
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`A Party or Third Party that makes original documents or materials available for
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`inspection need not designate them for protection until after the inspecting Party has indicated which
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`material it would like copied and produced. During the inspection and before the designation, all of
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`the material made available for inspection shall be deemed “HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE/DESIGN
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`FILES” if the material comprises or includes confidential or proprietary (1) source code or (2) native
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`design files. After the inspecting Party has identified the documents it wants copied and produced,
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`the Producing Party must determine which documents, or portions thereof, qualify for protection
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`under this Protective Order. Then, before producing the specified documents, the Producing Party
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`must affix the appropriate legend (“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE/DESIGN
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`FILES”) to each page that contains Protected Material, or, if not practicable, as otherwise agreed by
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`the Parties. There will be no waiver of confidentiality, or any privilege or immunity, by the
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`inspection of Discovery Material before it is copied and marked pursuant to this Protective Order.
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`Inspection of Discovery Material by any Party shall be conducted by persons eligible to access such
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`Discovery Material under Paragraph 31 or Paragraph 36 below however, access shall be limited
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`5
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`under Paragraph 36(a) to up to ten (10) of the Receiving Party’s Outside Counsel who have signed
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`the “Declaration to be Bound by Protective Order” attached as Exhibit A.
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`22.
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`Documents and things produced or made available for inspection may be subject to
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`redaction, in good faith by the Producing Party, of information that is subject to the attorney-client
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`privilege, to work-product protection, or to any other applicable privilege or protection. Each such
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`redaction, regardless of size, shall be clearly labeled “Redacted – Privileged.” This Paragraph shall
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`not be construed as a waiver of any Party’s right to seek disclosure of redacted information. All
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`documents redacted based on attorney-client privilege or work-product immunity shall be listed on a
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`privilege log stating the basis for such redaction, pursuant to Fed. R. Civ. P. 26(b)(5), except that the
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`Parties shall not be required to provide a privilege log for any privileged communications or work
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`product created after December 5, 2019.
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`23.
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`Information revealed during a deposition upon oral or written examination under Fed.
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`R. Civ. P. 30 shall be treated as HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY for
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`thirty (30) days (as calculated by Fed. R. Civ. P. 6) following receipt of the final transcript by
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`Outside Counsel for the Producing Party, but not thereafter unless, before the thirty (30) day period
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`has expired, Outside Counsel for the Producing Party notifies Outside Counsel for the Receiving
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`Party in writing that the Discovery Material set forth in the transcript is CONFIDENTIAL, HIGHLY
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY, or HIGHLY CONFIDENTIAL – SOURCE
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`CODE/DESIGN FILES. Counsel for any Party or Third Party also may designate the transcript or
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`portions thereof to be CONFIDENTIAL Discovery Material, HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY Discovery Material, or HIGHLY CONFIDENTIAL – SOURCE
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`CODE/DESIGN FILES Discovery Material during the deposition. The appropriate legend described
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`in Paragraph 19 shall be placed on the front of any deposition transcript (and, if recorded, any copies
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`6
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`of the recording) containing CONFIDENTIAL Discovery Material, HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY Discovery Material, or HIGHLY CONFIDENTIAL – SOURCE
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`CODE/DESIGN FILES Discovery Material.
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`24.
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`Any pleading, brief, declaration, affidavit, expert report, or other filing that contains,
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`describes, or discusses CONFIDENTIAL Discovery Material, HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY Discovery Material, or HIGHLY CONFIDENTIAL – SOURCE
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`CODE/DESIGN FILES Discovery Material shall be filed under seal pursuant to the requirements of
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`D. Del. LR 5.1.3 and the Court’s CM/ECF procedures. The filing Party must include on the cover
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`page of the brief or other filing a descriptive legend in substantially the following format:
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`“CONFIDENTIAL – FILED UNDER SEAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’
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`EYES ONLY – FILED UNDER SEAL,” “HIGHLY CONFIDENTIAL – SOURCE CODE/DESIGN
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`FILES – FILED UNDER SEAL,” or another suitable legend. Outside Counsel for the Party filing
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`papers containing, describing, or discussing CONFIDENTIAL Discovery Material, HIGHLY
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY Discovery Material, or HIGHLY
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`CONFIDENTIAL – SOURCE CODE/DESIGN FILES Discovery Material shall be responsible for
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`providing appropriately redacted copies of the filed document to the Court in accordance with
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`Paragraph (G)(l) of the United States District Court for the District of Delaware’s Revised
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`Administrative Procedures Governing Filing and Service by Electronic Means, revised May 2019. If
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`the filing contains the CONFIDENTIAL Discovery Material, HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY Discovery Material, or HIGHLY CONFIDENTIAL – SOURCE
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`CODE/DESIGN FILES Discovery Material of the Party who did not file the document, within three
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`(3) days from the date of a filing made under seal, Outside Counsel for the filing Party or filing
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`Third Party shall deliver to Outside Counsel for the non-filing Party or Parties a proposed public
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`7
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`version of the under seal filing, which shall include the filing Party’s proposed redactions of any
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`CONFIDENTIAL Discovery Material, HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY
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`Discovery Material, or HIGHLY CONFIDENTIAL – SOURCE CODE/DESIGN FILES Discovery
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`Material. Within three (3) days after receipt of the proposed public version, Outside Counsel for the
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`non-filing Party shall provide any additional redactions it believes appropriate. Redacted versions of
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`papers filed under seal may be made publicly available, provided that (a) all CONFIDENTIAL
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`Discovery Material, HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY Discovery
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`Material, or HIGHLY CONFIDENTIAL – SOURCE CODE/DESIGN FILES Discovery Material is
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`redacted; and (b) such redacted versions are clearly marked “Public Version” and clearly identify
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`each place where information or exhibits have been redacted or deleted.
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`USE
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`25.
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`CONFIDENTIAL Discovery Material, HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY Discovery Material, and HIGHLY CONFIDENTIAL – SOURCE
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`CODE/DESIGN FILES Discovery Material (discussed below) produced by a Party or Third Party
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`may be used by the Receiving Party only for purposes of this Litigation. Such Discovery Material
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`shall not be used for any other purpose including, but not limited to, any other lawsuit, patent office
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`proceeding, any unrelated dispute resolution proceeding, in the preparation or prosecution of any
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`patent or patent application, any petitioning, counseling, litigation, or other work. Nothing in this
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`Protective Order precludes a Producing Party from using or disseminating its own Discovery
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`Material, including CONFIDENTIAL Discovery Material, HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY Discovery Material, or HIGHLY CONFIDENTIAL – SOURCE
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`CODE/DESIGN FILES Discovery Material, for purposes other than this Litigation.
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`8
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`26.
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`A witness may be shown CONFIDENTIAL Discovery Material or HIGHLY
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY Discovery Material only if the witness is a
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`current employee of the Producing Party, or the CONFIDENTIAL Discovery Material or HIGHLY
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY Discovery Material itself or other Discovery
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`Materials reveal that the witness authored the CONFIDENTIAL Discovery Material or HIGHLY
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY Discovery Material, or received the
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`CONFIDENTIAL Discovery Material or HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
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`ONLY Discovery Material in the ordinary course of business and outside the context of this
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`Litigation.
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`27.
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`At the deposition of any corporate representative designated pursuant to Fed. R. Civ.
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`P. 30(b)(6) to testify on behalf of a Party on a particular topic or subject area, unless agreed to by the
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`Producing Party, such witness may be shown CONFIDENTIAL Discovery Material or HIGHLY
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY Discovery Material that is within that particular
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`topic or subject area only if the Producing Party is the Party being deposed pursuant to Fed. R. Civ.
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`P. 30(b)(6), or the CONFIDENTIAL Discovery Material or HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY Discovery Material within that particular topic or subject area reveals
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`on its face that an employee or agent of the Party being deposed pursuant to Fed. R. Civ. P. 30(b)(6)
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`authored
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`the CONFIDENTIAL Discovery Material or HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY Discovery Material while employed or acting as an agent of the Party
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`being deposed, or received the CONFIDENTIAL Discovery Material or HIGHLY CONFIDENTIAL
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`– ATTORNEYS’ EYES ONLY Discovery Material in the ordinary course of business while
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`employed or acting as an agent of the Party being deposed and outside the context of this Litigation.
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`28.
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`Third Parties may designate as CONFIDENTIAL or HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY deposition transcripts of their witnesses and any Discovery Material
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`they produce, whether voluntarily or by subpoena, to the same extent and in the same manner as the
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`Parties, and any such CONFIDENTIAL Discovery Material and HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY Discovery Material shall be treated by the Parties in the same manner
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`as the CONFIDENTIAL Discovery Material and HIGHLY CONFIDENTIAL – ATTORNEYS’
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`EYES ONLY Discovery Material produced by a Party. Third Parties shall have the same rights and
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`obligations under this Protective Order as Parties and may move the Court to enforce the provisions
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`of this Protective Order.
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`29.
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`Export Requirements. The Receiving Party will not use or export any technical
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`information in violation of U.S. export laws and regulations. Each party shall adhere to all
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`applicable export laws and regulations, including those administered by the U.S. Department of
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`Commerce (U.S. Export Administration Regulations 15 CFR 730 et seq.), and shall not export, re-
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`export, resell, transfer, or disclose, directly or indirectly, any technical data or products received
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`from the other to any proscribed person, entity, or country, or foreign national thereof, unless
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`properly authorized by the U.S. or other applicable government. Xilinx’s and Analog’s software
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`programs and technical information may not be exported or re-exported, either directly or indirectly,
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`to the U.S. embargoed destinations or entities of Cuba, Iran, North Korea, Sudan and Syria or to
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`persons/entities on the Denied Persons List, Unverified List, Entity List, Specially Designated
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`Nationals List and the Debarred List, without prior written authorization from the appropriate U.S.
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`government departments (Commerce, State Department, Treasury).
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`10
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`DISCLOSURE OF CONFIDENTIAL DISCOVERY MATERIAL
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`30.
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`Unless otherwise directed by the Court or authorized in writing by the Producing
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`Party, CONFIDENTIAL Discovery Material may be disclosed by the Receiving Party only to the
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`following persons:
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`(a)
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`Up to three In-House Counsel of the Receiving Party to whom disclosure is
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`reasonably necessary for this Litigation. For the avoidance of doubt, Xilinx
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`Inc. and Xilinx Asia Pacific Pte. Ltd. may collectively select up to three In-
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`(b)
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`(c)
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`House Counsel for purposes of this Paragraph;
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`Any Outside Counsel;
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`Support personnel for attorneys listed in Paragraph 30(b), such as law clerks,
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`analysts, scientific advisors, patent agents, paralegals, secretaries, and clerical
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`staff employed by Outside Counsel, assisting with this Litigation under the
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`supervision of an attorney described in Paragraph 30(b);
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`(d)
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`Contract attorneys retained by a Party’s Outside Counsel for the sole purpose
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`of assisting with document review in this Litigation, and who shall be subject
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`to the same restrictions as Outside Counsel set forth in Paragraph 30(b);
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`(e)
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`Any Expert who is expressly retained by any Outside Counsel to assist in this
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`Litigation, including any associates or analysts working under the supervision
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`of the Expert, with disclosure of CONFIDENTIAL Discovery Material only
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`to the extent necessary to perform such work, provided that the Expert, and
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`the associates and analysts working under the supervision of the Expert, have
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`signed the “Declaration to be Bound by Protective Order” attached as Exhibit
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`A and the procedures set forth in Paragraph 33 have been followed;
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`(f)
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`Support personnel for Experts listed in Paragraph 30(e), such as secretaries
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`and clerical staff, assisting with this Litigation under the supervision of an
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`Expert described in Paragraph 30(e) and who have signed the “Declaration to
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`be Bound by Protective Order” attached as Exhibit A;
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`(g)
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`Any interpreter, court reporter, or other shorthand reporter or typist who is
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`translating, recording, or transcribing documents or testimony in connection
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`with this Litigation;
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`(h)
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`Professional Vendors, as defined in Paragraph 14, who have signed the
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`“Declaration to be Bound by Protective Order” attached as Exhibit A;
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`(i)
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`Professional jury or trial consulting personnel who have signed the
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`“Declaration to be Bound by Protective Order” attached as Exhibit A;
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`(j) Mock jurors who have signed the “Declaration to be Bound by Protective
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`Order” attached as Exhibit A;
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`(k)
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`Personnel of the Court and all appropriate courts of appellate jurisdiction;
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`and
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`(l)
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`Any other person with the prior written consent of the Producing Party or by
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`order of this Court, and who has signed the “Declaration to be Bound by
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`Protective Order” attached as Exhibit A.
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`31.
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`Unless otherwise directed by the Court or authorized in writing by the Producing
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`Party, HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY Discovery Material may be
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`disclosed by the Receiving Party only to the following persons:
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`(a)
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`Any Outside Counsel;
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`(b)
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`Support personnel for attorneys listed in Paragraph 31(a), such as law clerks,
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`analysts, scientific advisors, patent agents, paralegals, secretaries, and clerical
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`staff employed by Outside Counsel, assisting with this Litigation under the
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`supervision of an attorney described in Paragraph 31(a);
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`(c)
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`Contract attorneys retained by a Party’s Outside Counsel for the sole purpose
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`of assisting with document review in this Litigation, and who shall be subject
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`to the same restrictions as Outside Counsel set forth in Paragraph 31(a);
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`(d)
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`Any Expert who is expressly retained by any Outside Counsel to assist in this
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`Litigation, including any associates or analysts working under the supervision
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`of
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`the Expert, with disclosure of HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY Discovery Material only to the extent
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`necessary to perform such work, provided that the Expert, and the associates
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`and analysts working under the supervision of the Expert, have signed the
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`“Declaration to be Bound by Protective Order” attached as Exhibit A and the
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`procedures set forth in Paragraph 33 have been followed;
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`(e)
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`Support personnel for Experts listed in Paragraph 31(e), such as secretaries
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`and clerical staff, assisting with this Litigation under the supervision of an
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`Expert described in Paragraph 31(d) and who have signed the “Declaration to
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`be Bound by Protective Order” attached as Exhibit A;
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`(f)
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`Any interpreter, court reporter, or other shorthand reporter or typist who is
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`translating, recording, or transcribing documents or testimony in connection
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`with this Litigation;
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`13
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`(g)
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`Professional Vendors, as defined in Paragraph 14, who have signed the
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`“Declaration to be Bound by Protective Order” attached as Exhibit A;
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`(h)
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`Personnel of the Court and all appropriate courts of appellate jurisdiction;
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`and
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`(i)
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`Any other person with the prior written consent of the Producing Party or by
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`order of this Court, and who has signed the “Declaration to be Bound by
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`Protective Order” attached as Exhibit A.
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`32.
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`CONFIDENTIAL Discovery Material and HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY Discovery Material shall not be disclosed to persons described in
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`Paragraph 30(e), (f), (h), (i), (j), or (l), or Paragraph 31(d), (e), (g), or (i), unless and until such
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`person has executed an acknowledgement in the form attached as Exhibit A. Either Outside Counsel
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`or In-House Counsel must maintain a copy of the executed Exhibit A for each such person during the
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`Litigation and for one (1) year thereafter.
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`33.
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`As a condition precedent to disclosure of any CONFIDENTIAL Discovery Materials
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`or HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY Discovery Materials to an Expert,
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`and any associates or analysts working under the supervision of the Expert, described above in
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`Paragraphs 30(e) and 31(d), at least seven (7) days (as calculated by Fed. R. Civ. P. 6) before the
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`disclosure of the CONFIDENTIAL Discovery Material or HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY Discovery Material is made, Outside Counsel for the Receiving Party
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`shall serve a notice on the Producing Party identifying such Expert, associate, and/or analyst by
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`name and including an up-to-date curriculum vitae (“CV”) or equivalent resume disclosing the
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`individual’s employment history, past or present relationship with any of the Parties and Affiliates,
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`an identification of the individual’s employment and consulting relationships for the past five (5)
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`years (to the extent such information is not disclosed on the individual’s curriculum vitae),1 all cases
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`in which the individual has testified in a deposition or a trial in the past five (5) years, an indication
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`of whether Outside Counsel for the Receiving Party intends to show the individual “HIGHLY
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`CONFIDENTIAL – SOURCE CODE/DESIGN FILES” Discovery Material pursuant to Paragraph
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`36(c), and an executed acknowledgment from the individual to whom the disclosure is to be made, in
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`the form of Exhibit A attached hereto. If a Producing Party objects to the proposed disclosure to
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`such individual within seven (7) days of disclosure, the Parties shall confer in good faith within three
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`(3) days to resolve the concerns giving rise to the objection. If the Parties are unable to reach
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`agreement regarding such disclosure, the objecting Party will have seven (7) days from the date of
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`the meet and confer to seek relief from the Court. The burden shall be on the objecting Party to
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`demonstrate to the Court why such individual should not be permitted to receive CONFIDENTIAL
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`Discovery Material and/or HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY Discovery
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`Material under the Protective Order. CONFIDENTIAL Discovery Material and HIGHLY
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY Discovery Material shall not be disclosed to such
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`individual pending the Court’s resolution of the dispute. If relief is not sought from the Court within
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`that time, the objection shall be deemed withdrawn. The foregoing time periods may be extended or
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`shortened by agreement of the Parties or by order of this Court.
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`34.
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`The recipient of any CONFIDENTIAL Discovery Material or HIGHLY
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY Discovery Material that is provided under this
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`Protective Order (including any copies or excerpts made thereof) shall maintain such Discovery
`
`
`1 If the individual believes any of this information is subject to a confidentiality obligation to a Third
`Party, then the individual should provide whatever information the individual believes can be
`disclosed without violating any confidentiality agreements, and the Party seeking to disclose to the
`individual should notify the other Party that information has been withheld and shall be available to
`meet and confer regarding such information.
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`
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`Material in a secure and safe area and shall exercise reasonable and proper care with respect to the
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`storage, custody, use, and/or dissemination of such Discovery Material. The recipient of
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`CONFIDENTIAL Discovery Material or HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
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`ONLY Discovery Material produced in electronic form shall maintain such CONFIDENTIAL
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`Discovery Material or HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY Discovery
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`Material on a secure, password-protected computer, drive, or server with access restricted to persons
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`authorized under Paragraphs 30 and 31, respectively.
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`SOURCE CODE/DESIGN FILES
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`35.
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`To the extent production of source code or native circuit design files becomes
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`necessary in this case, a Producing Party may designate source code and native circuit design files as
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`“HIGHLY CONFIDENTIAL – SOURCE CODE/DESIGN FILES” if it comprises or includes
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`confidential or proprietary (1) source code or (2) native circuit design files.
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`36.
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`Discovery Material designated as “HIGHLY CONFIDENTIAL – SOURCE
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`CODE/DESIGN FILES” shall be subject to all of the protections afforded to “HIGHLY
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`CONFIDENTIAL –ATTORNEYS’ EYES ONLY” Discovery Material and may be disclosed only to
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`the following persons:
`
`(a)
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`The Receiving Party’s Outside Counsel who have signed the “Declaration to
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`be Bound by Protective Order” attached as Exhibit A, except that no more
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`than twenty (20) of the Receiving Party’s Outside Counsel may review
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`source code and native circuit design files made available for inspection by
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`the Producing Party, including paper copies of such source code and native
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`circuit design files provided pursuant to Paragraph 40 of this Protective
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`Order, and the parties shall meet and confer should either Party request that
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`
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`more than twenty (20) of the Party’s Outside Counsel be allowed to perform
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`such review;
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`(b)
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`Support personnel for attorneys listed in Paragraph 36(a), such as law clerks,
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`paralegals, secretaries, and clerical staff, assisting with this Litigation under
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`the supervision of an attorney described in Paragraph 36(a), with disclosure
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`of HIGHLY CONFIDENTIAL – SOURCE CODE/DESIGN FILES
`
`Discovery Material only to the extent necessary to perform such work;
`
`(c)
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`Up to fifteen (15) Experts who are expressly retained by the Receiving
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`Party’s Outside Counsel to assist in this Litigation, including any associates
`
`or analysts working under the supervision of the Experts, with disclosure of
`
`HIGHLY CONFIDENTIAL – SOURCE CODE/DESIGN FILES Discovery
`
`Material only to the extent necessary to perform such work, provided that the
`
`Experts, and the associates and analysts working under the supervision of the
`
`Experts, have signed the “Declaration to be Bound by Protective Order”
`
`attached as Exhibit A and the procedures set forth in Paragraph 33 have been
`
`followed.
`
`(d)
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`Support personnel for Experts described in Paragraph 36(c), such as
`
`secretaries and clerical staff, assisting with this Litigation under the
`
`supervision of an Expert described in Paragraph 36(c), with disclosure of
`
`HIGHLY CONFIDENTIAL – SOURCE CODE/DESIGN FILES Discovery
`
`Material only to the extent necessary to perform such work and who have
`
`signed the “Declaration to be Bound by Protective Order” attached as Exhibit
`
`A;
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`
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`(e)
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`Any interpreter, court reporter, or other shorthand reporter or typist who is
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`translating, recording, or transcribing documents or testimony in connection
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`with this Litigation;
`
`(f)
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`Personnel of the Court and all appropriate courts of appellate jurisdiction;
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`and
`
`(g)
`
`Any other person with the prior written consent of the P