Case 1:23-cv-00278-MN Document 33 Filed 08/31/23 Page 1 of 30 PageID #: 921
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`C.A. No. 1:23-cv-00278-MN
`
`))
`
`))
`
`)
`)
`)
`)
`)
`
`PAYRANGE, INC.,
`
`Plaintiff,
`
`v.
`
`CSC SERVICEWORKS, INC.,
`
`Defendant.
`
`PROTECTIVE ORDER REGARDING THE DISCLOSURE
`AND USE OF DISCOVERY MATERIALS
`
`Plaintiff PayRange,
`
`Inc
`
`(“Plaintiff”) and Defendant CSC ServiceWorks,
`
`Inc.
`
`(“Defendant”) anticipate that documents, testimony, or information containing or reflecting
`
`confidential, proprietary, trade secret, and/or commercially sensitive information are likely to be
`
`disclosed or produced during the course of discovery, initial disclosures, and supplemental
`
`disclosures in this case and request that the Court enter this Order setting forth the conditions for
`
`treating, obtaining, and using such information.
`
`Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the Court finds good cause
`
`for the following agreed Protective Order Regarding the Disclosure and Use of Discovery
`
`Materials (“Order” or “Protective Order”).
`
`1.
`
`PURPOSES AND LIMITATIONS
`
`(a)
`
`Protected Material designated under the terms of this Protective Order shall
`
`be used by a Receiving Party solely for this case, and shall not be used directly or indirectly for
`
`any other purpose whatsoever.
`
`(b)
`
`The Parties acknowledge that this Order does not confer blanket protections
`
`on all disclosures during discovery, or in the course of making initial or supplemental disclosures
`
`

`

`Case 1:23-cv-00278-MN Document 33 Filed 08/31/23 Page 2 of 30 PageID #: 922
`
`under Rule 26(a). Designations under this Order shall be made with care and shall not be made
`
`absent a good faith belief that the designated material satisfies the criteria set forth below. If it
`
`comes to a Producing Party’s attention that designated material does not qualify for protection at
`
`all, or does not qualify for the level of protection initially asserted, the Producing Party must
`
`promptly notify all other Parties that it is withdrawing or changing the designation.
`
`2.
`
`DEFINITIONS
`
`(a)
`
`“Discovery Material” means all items or information, including from any
`
`non-party, regardless of the medium or manner generated, stored, or maintained (including, among
`
`other things, testimony, transcripts, or tangible things) that are produced, disclosed, or generated
`
`in connection with discovery or Rule 26(a) disclosures in this case.
`
`(b)
`
`“Outside Counsel” means (i) outside counsel who appear on the pleadings
`
`as counsel for a Party and (ii) partners, associates, and staff of such counsel to whom it is
`
`reasonably necessary to disclose the information for this litigation.
`
`(c)
`
`“Party” means any party to this case, including all of its officers, directors,
`
`employees, consultants, retained experts, and outside counsel and their support staffs.
`
`(d)
`
`“Producing Party” means any Party or non-party that discloses or produces
`
`any Discovery Material in this case.
`
`(e)
`
`“Protected Material” means any Discovery Material that is designated as
`
`“CONFIDENTIAL,” “CONFIDENTIAL - ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL
`
`- OUTSIDE ATTORNEYS’ EYES ONLY ¬SOURCE CODE,” as provided for in this Order.
`
`Protected Material shall not include: (i) advertising materials that have been actually published or
`
`publicly disseminated; and (ii) materials that show on their face they have been disseminated to
`
`the public.
`
`2
`
`

`

`Case 1:23-cv-00278-MN Document 33 Filed 08/31/23 Page 3 of 30 PageID #: 923
`
`(f)
`
`“Receiving Party” means any Party who receives Discovery Material from
`
`a Producing Party.
`
`(g)
`
`“Source Code” means computer code, scripts, assembly, binaries, object
`
`code, source code listings (e.g., file names and path structure), descriptions of source code (e.g.,
`
`descriptions of declarations, functions, and parameters), object code listings and descriptions of
`
`object code, Hardware Description Language (HDL) or Register Transfer Level (RTL) files that
`
`describe the hardware design of any ASIC or other chip, and Computer Aided Design (CAD) files
`
`that describe the hardware design of any component.
`
`3.
`
`COMPUTATION OF TIME
`
`The computation of any period of time prescribed or allowed by this Order shall be
`
`governed by the provisions for computing time set forth in Federal Rules of Civil Procedure 6.
`
`4.
`
`SCOPE
`
`(a)
`
`The protections conferred by this Order cover not only Discovery Material
`
`governed by this Order as addressed herein, but also any information copied or extracted
`
`therefrom, as well as all copies, excerpts, summaries, or compilations thereof, plus testimony,
`
`conversations, or presentations by Parties or their counsel in court or in other settings that might
`
`reveal Protected Material.
`
`(b)
`
`Nothing in this Protective Order shall prevent or restrict a Producing Party’s
`
`own disclosure or use of its own Protected Material for any purpose, and nothing in this Order
`
`shall preclude any Producing Party from showing its Protected Material to an individual who
`
`prepared the Protected Material.
`
`3
`
`

`

`Case 1:23-cv-00278-MN Document 33 Filed 08/31/23 Page 4 of 30 PageID #: 924
`
`(c)
`
`Nothing in this Order shall be construed to prejudice any Party’s right to
`
`use any Protected Material in court or in any court filing with the consent of the Producing Party
`
`or by order of the Court.
`
`(d)
`
`This Order is without prejudice to the right of any Party to seek further or
`
`additional protection of any Discovery Material or to modify this Order in any way, including,
`
`without limitation, an order that certain matter not be produced at all.
`
`5.
`
`DURATION
`
`Even after the termination of this case, the confidentiality obligations imposed by this
`
`Order shall remain in effect until a Producing Party agrees otherwise in writing or a court order
`
`otherwise directs.
`
`6.
`
`ACCESS TO AND USE OF PROTECTED MATERIAL
`
`(a)
`
`Basic Principles. All Protected Material shall be used solely for this case or
`
`any related appellate proceeding, and not for any other purpose. Protected Material shall not be
`
`distributed, disclosed or made available to anyone except as expressly provided in this Order.
`
`(b)
`
`Patent Prosecution Bar. Absent the written consent of the Producing Party,
`
`any person who receives one or more items designated “CONFIDENTIAL — ATTORNEYS’
`
`EYES ONLY” or “CONFIDENTIAL — ATTORNEYS’ EYES ONLY — SOURCE CODE” shall
`
`not be involved, directly or indirectly, in any of the following activities: advising on, consulting
`
`on, preparing, prosecuting, drafting, editing, and/or amending of patent applications,
`
`specifications, claims, and/or responses to office actions for patents or patent applications of their
`
`respective clients regarding the subject matter of the Protected Materials, before any foreign or
`
`domestic agency, including the United States Patent and Trademark Office. These prohibitions are
`
`not intended to and shall not preclude counsel from participating in proceedings challenging the
`
`4
`
`

`

`Case 1:23-cv-00278-MN Document 33 Filed 08/31/23 Page 5 of 30 PageID #: 925
`
`validity of any patent, including reexamination, inter partes review, covered business method
`
`review, and/or reissue proceedings. These prohibitions shall begin when access
`
`to
`
`“CONFIDENTIAL — ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL — ATTORNEYS’
`
`EYES ONLY — SOURCE CODE” materials are first received by the affected individual, and
`
`shall end two (2) years after the final resolution of this action, including all appeals.
`
`(c)
`
`Secure Storage, No Export. Protected Material must be stored and
`
`maintained by a Receiving Party at a location in the United States and in a secure manner that
`
`ensures that access is limited to the persons authorized under this Order. To ensure compliance
`
`with applicable United States Export Administration Regulations, Protected Material may not be
`
`exported outside the United States.
`
`(d)
`
`Legal Advice Based on Protected Material. Nothing in this Protective Order
`
`shall be construed to prevent counsel from advising their clients with respect to this case based in
`
`whole or in part upon Protected Materials, provided counsel does not disclose the Protected
`
`Material itself except as provided in this Order.
`
`(e)
`
`Limitations. Nothing in this Order shall restrict in any way a Producing
`
`Party’s use or disclosure of its own Protected Material. Nothing in this Order shall restrict in any
`
`way the use or disclosure of Discovery Material by a Receiving Party: (i) that is or has become
`
`publicly known through no fault of the Receiving Party; (ii) that is lawfully acquired by or known
`
`to the Receiving Party independent of the Producing Party; (iii) previously produced, disclosed
`
`and/or provided by the Producing Party to the Receiving Party or a non-party without an obligation
`
`of confidentiality and not by inadvertence or mistake; (iv) with the consent of the Producing Party;
`
`or (v) pursuant to order of the Court.
`
`5
`
`

`

`Case 1:23-cv-00278-MN Document 33 Filed 08/31/23 Page 6 of 30 PageID #: 926
`
`7.
`
`DESIGNATING PROTECTED MATERIAL
`
`(a)
`
`Available Designations. Any Producing Party may designate Discovery
`
`Material with any of the following designations, provided that it meets the requirements for such
`
`designations as provided for herein: “CONFIDENTIAL,” “CONFIDENTIAL - ATTORNEYS’
`
`EYES ONLY,” or “CONFIDENTIAL —OUTSIDE ATTORNEYS’ EYES ONLY - SOURCE
`
`CODE.”
`
`(b) Written Discovery and Documents and Tangible Things. Written discovery,
`
`documents (which include “electronically stored information,” as that phrase is used in Federal
`
`Rule of Procedure 34), and tangible things that meet the requirements for the confidentiality
`
`designations listed in Paragraph 7(a) may be so designated by placing the appropriate designation
`
`on every page of the written material prior to production. For digital files being produced, the
`
`Producing Party may mark each viewable page or image with the appropriate designation, and
`
`mark the medium, container, and/or communication in which the digital files were contained. In
`
`the event that original documents are produced for inspection, the original documents shall be
`
`presumed “CONFIDENTIAL — ATTORNEYS’ EYES ONLY” during the inspection and re-
`
`designated, as appropriate during the copying process.
`
`(c)
`
`Native Files. Where electronic files and documents are produced in native
`
`electronic format, such electronic files and documents shall be designated for protection under this
`
`Order by appending to the file names or designators information indicating whether the file
`
`contains “CONFIDENTIAL,” “CONFIDENTIAL - ATTORNEYS’ EYES ONLY,” or
`
`“CONFIDENTIAL -OUTSIDE ATTORNEYS’ EYES ONLY - SOURCE CODE,” material, or
`
`shall use any other reasonable method for so designating Protected Materials produced in
`
`electronic format. When electronic files or documents are printed for any use, the party printing
`
`6
`
`

`

`Case 1:23-cv-00278-MN Document 33 Filed 08/31/23 Page 7 of 30 PageID #: 927
`
`the electronic files or documents shall affix a legend to the printed document corresponding to the
`
`designation of the Designating Party and including the production number and designation
`
`associated with the native file. To the extent native files are used during the course of litigation,
`
`the Receiving Party agrees not to alter such native files in any way without the consent of the
`
`Producing Party.
`
`(d)
`
`Depositions and Testimony. Parties or testifying persons or entities may
`
`designate depositions and other testimony with the appropriate designation by indicating on the
`
`record at the time the testimony is given or by sending written notice of how portions of the
`
`transcript of the testimony is designated within thirty (30) days of receipt of the transcript of the
`
`testimony. If no indication on the record is made, all information disclosed during a deposition
`
`shall be deemed “CONFIDENTIAL — ATTORNEYS’ EYES ONLY” until the time within which
`
`it may be appropriately designated as provided for herein has passed. Any Party that wishes to
`
`disclose the transcript, or information contained therein, may provide written notice of its intent to
`
`treat the transcript as non-confidential, after which time, any Party that wants to maintain any
`
`portion of the transcript as confidential must designate the confidential portions within fourteen
`
`(14) days, or else the transcript may be treated as non-confidential. Any Protected Material that is
`
`used in the taking of a deposition shall remain subject to the provisions of this Protective Order,
`
`along with the transcript pages of the deposition testimony dealing with such Protected Material.
`
`In such cases the court reporter shall be informed of this Protective Order and shall be required to
`
`operate in a manner consistent with this Protective Order. In the event the deposition is videotaped,
`
`the original and all copies of the videotape shall be marked by the video technician to indicate that
`
`the contents of the videotape are subject to this Protective Order, substantially along the lines of
`
`“This videotape contains confidential testimony used in this case and is not to be viewed or the
`
`7
`
`

`

`Case 1:23-cv-00278-MN Document 33 Filed 08/31/23 Page 8 of 30 PageID #: 928
`
`contents thereof to be displayed or revealed except pursuant to the terms of the operative Protective
`
`Order in this matter or pursuant to written stipulation of the parties.” Counsel for any Producing
`
`Party shall have the right to exclude from oral depositions, other than the deponent, deponent’s
`
`counsel, the reporter and videographer (if any), any person who is not authorized by this Protective
`
`Order to receive or access Protected Material based on the designation of such Protected Material.
`
`Such right of exclusion shall be applicable only during periods of examination or testimony
`
`regarding such Protected Material.
`
`8.
`
`DISCOVERY MATERIAL DESIGNATED AS “CONFIDENTIAL”
`
`(a)
`
`A Producing Party may
`
`designate Discovery Material
`
`as
`
`“CONFIDENTIAL” if it contains or reflects confidential, proprietary, and/or commercially
`
`sensitive information. The Producing Party must also comply with the provisions of Paragraph 21
`
`below.
`
`(b)
`
`Unless otherwise ordered by the Court, Discovery Material designated as
`
`“CONFIDENTIAL” may be disclosed only to the following:
`
`(i)
`
`The Receiving Party’s Outside Counsel, such counsel’s immediate
`
`paralegals and staff, and any copying or clerical litigation support services working at the direction
`
`of such counsel, paralegals, and staff;
`
`(ii)
`
`Not more than three (3) representatives of the Receiving Party who
`
`are officers or employees of the Receiving Party, who may be, but need not be, in-house counsel
`
`for the Receiving Party, as well as their immediate paralegals and staff, to whom disclosure is
`
`reasonably necessary for this case, provided that: (a) each such person has agreed to be bound by
`
`the provisions of the Protective Order by signing a copy of Exhibit A; and (b) no unresolved
`
`8
`
`

`

`Case 1:23-cv-00278-MN Document 33 Filed 08/31/23 Page 9 of 30 PageID #: 929
`
`objections to such disclosure exist after proper notice has been given to all Parties as set forth in
`
`Paragraph 12 below;
`
`(iii)
`
`Any outside expert or consultant retained by the Receiving Party to
`
`assist in this action, provided that disclosure is only to the extent necessary to perform such work;
`
`and provided that: (a) such expert or consultant has agreed to be bound by the provisions of the
`
`Protective Order by signing a copy of Exhibit A; (b) such expert or consultant is not a current
`
`officer, director, or employee of a Party, nor anticipated at the time of retention to become an
`
`officer, director or employee of a Party; (c) such expert or consultant accesses the materials in the
`
`United States only, and does not transport them to or access them from any foreign jurisdiction;
`
`and (d) no unresolved objections to such disclosure exist after proper notice has been given to all
`
`Parties as set forth in Paragraph 12 below;
`
`(iv)
`
`Court reporters, stenographers and videographers retained to record
`
`testimony taken in this action;
`
`(v)
`
`The Court, jury, and court personnel in the ordinary course of court
`
`proceedings;
`
`(vi)
`
`Graphics, translation, design, and/or trial consulting personnel,
`
`having first agreed to be bound by the provisions of the Protective Order by signing a copy of
`
`Exhibit A;
`
`(vii) Mock jurors who have signed an undertaking or agreement agreeing
`
`not to publicly disclose Protected Material and to keep any information concerning Protected
`
`Material confidential;
`
`9
`
`

`

`Case 1:23-cv-00278-MN Document 33 Filed 08/31/23 Page 10 of 30 PageID #: 930
`
`(viii) Any mediator who is assigned to hear this matter, and his or her
`
`staff, subject to their agreement to maintain confidentiality to the same degree as required by this
`
`Protective Order; and
`
`Party.
`
`(ix)
`
`Any other person with the prior written consent of the Producing
`
`9.
`
`DISCOVERY MATERIAL DESIGNATED AS “CONFIDENTIAL
`
`ATTORNEYS’ EYES ONLY”
`
`(a)
`
`A Producing Party may
`
`designate Discovery Material
`
`as
`
`“CONFIDENTIAL — ATTORNEYS’ EYES ONLY” if it contains or reflects information that is
`
`extremely confidential and/or sensitive in nature and the Producing Party reasonably believes that
`
`the disclosure of such Discovery Material is likely to cause economic harm or significant
`
`competitive disadvantage to the Producing Party. The Producing Party must also comply with the
`
`provisions of Paragraph 21 below. The Parties agree that the following information, if non-public,
`
`shall be presumed to merit the “CONFIDENTIAL — ATTORNEYS’ EYES ONLY” designation:
`
`trade secrets, pricing information, financial data, sales information, sales or marketing forecasts or
`
`plans, business plans, sales or marketing strategy, product development information, engineering
`
`documents, testing documents, employee information, and other non-public information of similar
`
`competitive and business sensitivity.
`
`(b)
`
`Unless otherwise ordered by the Court, Discovery Material designated as
`
`“CONFIDENTIAL — ATTORNEYS’ EYES ONLY” may be disclosed only to:
`
`(i)
`
`The Receiving Party’s Outside Counsel and such Outside Counsel’s
`
`immediate paralegals and staff, and any copying or clerical litigation support services working at
`
`the direction of such counsel, paralegals, and staff;
`
`10
`
`

`

`Case 1:23-cv-00278-MN Document 33 Filed 08/31/23 Page 11 of 30 PageID #: 931
`
`(ii)
`
`Not more than two (2) in-house counsel of the Receiving Party1 as
`
`well as their immediate paralegals and staff to whom disclosure is reasonably necessary for this
`
`case, provided that: (a) each such person has agreed to be bound by the provisions of the Protective
`
`Order by signing a copy of Exhibit A; and (b) no unresolved objections to such disclosure exist
`
`after proper notice has been given to all Parties as set forth in Paragraph 12 below;
`
`(iii) Any outside expert or consultant retained by the Receiving Party to
`
`assist in this action, provided that disclosure is only to the extent necessary to perform such work;
`
`and provided that: (a) such expert or consultant has agreed to be bound by the provisions of the
`
`Protective Order by signing a copy of Exhibit A; (b) such expert or consultant is not a current
`
`officer, director, or employee of a Party, nor anticipated at the time of retention to become an
`
`officer, director, or employee of a Party; (c) such expert or consultant accesses the materials in the
`
`United States only, and does not transport them to or access them from any foreign jurisdiction;
`
`and (d) no unresolved objections to such disclosure exist after proper notice has been given to all
`
`Parties as set forth in Paragraph 12 below;
`
`(iv) Court reporters, stenographers and videographers retained to record
`
`testimony taken in this action;
`
`(v)
`
`The Court, jury, and court personnel in the ordinary course of court
`
`proceedings;
`
`(vi)
`
`Graphics, translation, design, and/or trial consulting personnel,
`
`having first agreed to be bound by the provisions of the Protective Order by signing a copy of
`
`Exhibit A;
`
`1 The Receiving Party may seek approval to add up to one (1) additional in-house counsel under
`this provision, which the parties agree to meet and confer about in good faith.
`
`11
`
`

`

`Case 1:23-cv-00278-MN Document 33 Filed 08/31/23 Page 12 of 30 PageID #: 932
`
`(vii) Any mediator who is assigned to hear this matter, and his or her
`
`staff, subject to their agreement to maintain confidentiality to the same degree as required by this
`
`Protective Order; and
`
`Party.
`
`(viii) Any other person with the prior written consent of the Producing
`
`(c)
`
`In addition, a Party may disclose arguments and materials derived from
`
`Discovery Material designated as “CONFIDENTIAL — ATTORNEYS’ EYES ONLY” to mock
`
`jurors who have signed an undertaking or agreement agreeing not to publicly disclose Protected
`
`Material and to keep any information concerning Protected Material confidential. A Party may not
`
`disclose to mock jurors any original, as-produced materials or information (including, for example,
`
`documents, deposition testimony, or interrogatory responses) produced by another Party
`
`designated as “CONFIDENTIAL - ATTORNEYS’ EYES ONLY.”
`
`10.
`
`DISCOVERY MATERIAL DESIGNATED AS “CONFIDENTIAL
`
`OUTSIDE ATTORNEYS’ EYES ONLY - SOURCE CODE”
`
`(a)
`
`To the extent production of Source Code becomes necessary to the
`
`prosecution or defense of the case, a Producing Party may designate Source Code as
`
`“CONFIDENTIAL — OUTSIDE ATTORNEYS’ EYES ONLY - SOURCE CODE” if it
`
`comprises or includes confidential, proprietary, and/or trade secret Source Code. The Producing
`
`Party must also comply with the provisions of Paragraph 21 below.
`
`(b)
`
`Nothing in this Order shall be construed as a representation or admission
`
`that Source Code is properly discoverable in this action, or to obligate any Party to produce any
`
`Source Code.
`
`12
`
`

`

`Case 1:23-cv-00278-MN Document 33 Filed 08/31/23 Page 13 of 30 PageID #: 933
`
`(c)
`
`Unless otherwise ordered by the Court, Discovery Material designated as
`
`“CONFIDENTIAL — OUTSIDE ATTORNEYS’ EYES ONLY -SOURCE CODE” shall be
`
`subject to the provisions set forth in Paragraph 11 below, and may be disclosed, subject to
`
`Paragraph 11 below, solely to:
`
`(i)
`
`The Receiving Party’s Outside Counsel and such Outside Counsel’s
`
`immediate paralegals and staff, and any copying or clerical litigation support services working at
`
`the direction of such counsel, paralegals, and staff;
`
`(ii)
`
`Any outside expert or consultant retained by the Receiving Party to
`
`assist in this action, provided that disclosure is only to the extent necessary to perform such work;
`
`and provided that: (a) such expert or consultant has agreed to be bound by the provisions of the
`
`Protective Order by signing a copy of Exhibit A; (b) such expert or consultant is not a current
`
`officer, director, or employee of a Party, nor anticipated at the time of retention to become an
`
`officer, director or employee of a Party; and (c) no unresolved objections to such disclosure exist
`
`after proper notice has been given to all Parties as set forth in Paragraph 12 below;
`
`(iii) Court reporters, stenographers and videographers retained to record
`
`testimony taken in this action;
`
`(iv)
`
`The Court, jury, and court personnel in the ordinary course of court
`
`proceedings;
`
`(v)
`
`Any mediator who is assigned to hear this matter, and his or her
`
`staff, subject to their agreement to maintain confidentiality to the same degree as required by this
`
`Protective Order; and
`
`Party.
`
`(vi)
`
`Any other person with the prior written consent of the Producing
`
`13
`
`

`

`Case 1:23-cv-00278-MN Document 33 Filed 08/31/23 Page 14 of 30 PageID #: 934
`
`11.
`
`DISCLOSURE AND REVIEW OF SOURCE CODE
`
`(a)
`
`Any Source Code that is produced by a Producing Party shall be made
`
`available for inspection in electronic format at a location mutually agreed by the Parties. Source
`
`Code will be made available for inspection between the hours of 8 a.m. and 6 p.m. on business
`
`days (i.e., weekdays that are not Federal holidays), although the Parties will be reasonable in
`
`accommodating reasonable requests to conduct inspections at other times.
`
`(b)
`
`Prior to the first inspection of any Source Code, the Receiving Party shall
`
`provide fourteen (14) days’ notice of the inspection. The parties shall then confer and agree to a
`
`location in which to inspect the Source Code within seven (7) days of the noticed inspection. The
`
`Receiving Party shall provide three (3) business days’ notice prior to any additional inspections.
`
`(c)
`
`Source Code that is designated “CONFIDENTIAL — OUTSIDE
`
`ATTORNEYS’ EYES ONLY - SOURCE CODE” shall be produced for inspection and review
`
`subject to the following provisions, unless otherwise agreed by the Producing Party:
`
`(i)
`
`All Source Code shall be made available by the Producing Party in
`
`a secure room on a secured computer without Internet access or network access to other computers
`
`and on which all access ports have been disabled (except for one printer port), as necessary and
`
`appropriate to prevent and protect against any unauthorized copying, transmission, removal or
`
`other transfer of any Source Code outside or away from the computer on which the Source Code
`
`is provided for inspection (the “Source Code Computer” in the “Source Code Review Room”).
`
`The Producing Party shall install tools that are sufficient for viewing and searching the code
`
`produced, on the platform produced. The Receiving Party’s outside counsel and/or experts as
`
`defined in Section 10(c)(i) and 10(c)(ii), above, may request that commercially available software
`
`tools be installed on the secured computer, provided, however, that the Receiving Party possesses
`
`14
`
`

`

`Case 1:23-cv-00278-MN Document 33 Filed 08/31/23 Page 15 of 30 PageID #: 935
`
`an appropriate license to such software tools and provides the Producing Party with the information
`
`necessary to download such software tools (i.e., download links or a CD/DVD containing the
`
`software tools). To the extent such a request is made, it will be done at least fourteen (14) days in
`
`advance of the date upon which the Receiving Party wishes to have the additional software tools
`
`available for use on the Source Code Computer. The parties further agree that any such software
`
`tools will not be used to compile or alter the source code in any way. To the extent the Producing
`
`Party objects to the requested installation of any software tools, the Producing Party will notify the
`
`Receiving Party within seven (7) days and the parties will meet and confer in good faith regarding
`
`the Producing Party’s concerns.
`
`(ii)
`
`No recordable media or recordable devices, including without
`
`limitation sound recorders, computers, cellular telephones, peripheral equipment, cameras, CDs,
`
`DVDs, or drives of any kind, shall be permitted into the Source Code Review Room, with the
`
`exception of a single laptop computer, provided by the Producing Party, without Internet access or
`
`network access to any other computer, which may be used by the Receiving Party to take notes
`
`relating to the Source Code but may not copy the Source Code into the notes. The Producing Party
`
`will not monitor the contents of any notes taken using the single authorized laptop computer,
`
`except to the extent necessary under Paragraph 11(c)(iv) below. The Receiving Party may attach
`
`a USB thumb drive to the single authorized laptop computer for the sole purpose of copying notes.
`
`(iii)
`
`The Receiving Party’s Outside Counsel and/or experts as defined in
`
`Section 10(c)(i) and 10(c)(ii), above, shall be entitled to take notes relating to the Source Code but
`
`may not copy the Source Code into the notes. The Receiving Party may take such notes on the
`
`single authorized laptop computer.
`
`15
`
`

`

`Case 1:23-cv-00278-MN Document 33 Filed 08/31/23 Page 16 of 30 PageID #: 936
`
`(iv)
`
`The Producing Party may visually monitor the activities of the
`
`Receiving Party’s representatives during any Source Code review, but only to ensure compliance
`
`with this Protective Order.
`
`(v)
`
`No copies of all or any portion of the Source Code may leave the
`
`room in which the Source Code is inspected except as otherwise provided in Paragraph 11. The
`
`Producing Party shall make available a laser printer with commercially reasonable printing speeds
`
`for on-site printing during inspection of the Source Code. Any printed portion that consists of more
`
`than ten (10) pages of a continuous block of Source Code will require a meet and confer between
`
`the parties. For good cause, the Receiving Party may request to print additional pages, and the
`
`Parties agree to discuss the request in good faith. The Receiving Party shall not print Source Code
`
`in order to review blocks of Source Code elsewhere in the first instance. Upon printing any such
`
`portions of Source Code, the printed pages shall be collected by the Producing Party. The
`
`Producing Party shall Bates number, copy, and label “CONFIDENTIAL — OUTSIDE
`
`ATTORNEYS’ EYES ONLY - SOURCE CODE” any pages printed by the Receiving Party.
`
`Within five (5) days, the Producing Party shall either (i) provide one copy set of such pages to the
`
`Receiving Party or (ii) inform the Requesting Party that it objects that the printed portions are
`
`excessive and/or not done for a permitted purpose. The printed pages shall constitute part of the
`
`Source Code produced by the Producing Party in this action.
`
`(vi) All persons who will review a Producing Party’s Source Code on
`
`behalf of a Receiving Party, including members of a Receiving Party’s outside law firm, shall be
`
`identified in writing to the Producing Party at least five (5) days in advance of the first time that
`
`such person reviews such Source Code. Such identification shall be in addition to any other
`
`disclosure required under this Order. All persons viewing Source Code shall sign on each day they
`
`16
`
`

`

`Case 1:23-cv-00278-MN Document 33 Filed 08/31/23 Page 17 of 30 PageID #: 937
`
`view Source Code a log that will include the names of persons who enter the locked room to view
`
`the Source Code and when they enter and depart. The Producing Party shall be entitled to a copy
`
`of the log upon one (1) day’s advance notice to the Receiving Party.
`
`(vii) Unless otherwise agreed in advance by the Parties in writing,
`
`following each day on which inspection is performed under this Order, the Receiving Party’s
`
`Outside Counsel and/or experts as defined in Section 10(c)(i) and 10(c)(ii), above, shall remove
`
`all notes, documents, and all other materials from the Source Code Review Room. The Producing
`
`Party shall not be responsible for any items left in the room following each inspection session, and
`
`the Receiving Party shall have no expectation of confidentiality for any items left in the room
`
`following each inspection session without a prior agreement to that effect. Proper identification of
`
`all authorized persons shall be provided prior to any access to the secure room or the computer
`
`containing Source Code. Proper identification requires showing, at a minimum, a photo
`
`identification card sanctioned by the government of any State of the United States, by the
`
`government of the United States, or by the nation state of the authorized person’s current
`
`citizenship. Access to the secure room or the Source Code Computer may be denied, at the
`
`discretion of the Producing Party, to any individual who fails to provide proper identification.
`
`(viii) Other than as provided above, the Receiving Party will not copy,
`
`remove, or otherwise transfer any Source Code from the Source Code Computer including, without
`
`limitation, copying, removing, or transferring the Source Code onto any recordable media or
`
`recordable device.
`
`(ix)
`
`The Receiving Party’s Outside Counsel of record may make no
`
`more than three (3) additional paper copies of any portions of the Source Code received from a
`
`Producing Party pursuant to Paragraph 11(c)(v), not including copies attached to court filings or
`
`17
`
`

`

`Case 1:23-cv-00278-MN Document 33 Filed 08/31/23 Page 18 of 30 PageID #: 938
`
`used at depositions, and shall maintain a log of all paper copies of the Source Code. The Receiving
`
`Party may ship the additional copies of the Source Code to other addresses, provided that
`
`appropriate measures are taken to maintain security. The log sha