IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`OPENTV, INC.,
`Plaintiff,
`v.
`PINTEREST, INC.,
`D
`efendant.
`C
`.A. No. 24-1301-JCG
`PROTECTIVE ORDER
`1. PURPOSES AND LIMITATIONS
`Discovery activity in this action is likely to involve production of confidential,
`proprietary, or private information for which special protection from public
`disclosure and from use for any purpose other than prosecuting this litigation may
`be warranted. Accordingly, the parties hereby sti pulate to and petition the Court to
`enter the following Stipulated Protective Order. The parties acknowledge that this
`Order does not confer blanket protections on all disclosures or responses to
`discovery and that the protection it affords from public disclosure and use extends
`only to the limited information or items that are entitled to confidential treatment
`under the applicable legal principles.
`2. DEFINITIONS
`2.1 Challenging Party: a Party or Non-Party that challenges the designation
`of information or items under this Order.
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`2.2 “CONFIDENTIAL” Information or Items: information (regardless of
`how it is generated, stored, or maintained) or tangible things that qualify for
`protection under Federal Rule of Civil Procedure 26(c).
`2.3 Counsel (without qualifier): Outside Counsel of Record and House
`Counsel (as well as their support staff).
`2.4 Designating Party: a Party or Non-Party that designates information or
`items that it produces in disclosures or in responses to discovery requests as
`“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’
`EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE.”
`2.5 Disclosure or Discovery Material : all items or information, regardless
`of the medium or manner in which it is generated, stored, or maintained (including,
`among other things, testimony, transcripts, and tangible things), that are produced or
`generated in disclosures or responses to discovery in this matter.
`2.6 Expert: a person with specialized knowledge or experience in a matter
`pertinent to the litigation who (1) has been retained by a Party or its Counsel to serve
`as an expert witness or as a consultant in this action, (2) is not a past or current
`employee of a Party or of a Party’s competitor, and (3) at the time of retention, is
`not anticipated to become an employee of a Party or of a Party’s competitor.
`2.7 “HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES
`ONLY” Information or Items: extremely sensitive “Confidential Information or
`Items,” disclosure of which to another Party or Non-Party would create a substantial
`risk of serious harm that could not be avoided by less restrictive means.
`2.8 “HIGHLY CONFIDENTIAL – SOURCE CODE” Information or
`Items: extremely sensitive “Confidential Information or Items” representing or
`containing proprietary non-open source or non-public domain computer code, build
`environment, and associated comments and revision histories, formulas, engineering
`specifications, or schematics that define or otherwise describe in detail the
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`algorithms or structure of software or hardware designs , disclosure of which to
`another Party or Non-Party would create a substantial risk of serious harm that could
`not be avoided by less restrictive means.
`2.9 Non-Party: any natural person, partnership, corporation, association, or
`other legal entity not named as a Party to this action.
`2.10 Outside Counsel of Record: attorneys who are not employees of a party
`to this action but are retained to represent or advise a party to this action and have
`appeared in this action on behalf of that party or are employed by a law firm which
`has appeared on behalf of that party; as well as staff of such counsel to whom it is
`reasonably necessary to disclose or allow access to Protected Materials for this
`matter.
`2.11 Party: any party to this action, including all of its officers, directors,
`employees, consultants, retained experts, and Outside Counsel of Record (and their
`support staffs).
`2.12 Producing Party: a Party or Non- Party that produces Disclosure or
`Discovery Material in this action.
`2.13 Professional Vendors: persons or entities that provide litigation support
`services (e.g., photocopying, videotaping, translating, preparing exhibits or
`demonstrations, and organizing, storing, or retrieving data in any form or medium)
`and their employees and subcontractors.
`2.14 Protected Material : any Disclosure or Discovery Material that is
`designated as “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – OUTSIDE
`ATTORNEYS’ EYES ONLY ” or as “HIGH LY CONFIDENTIAL – SOURCE
`CODE.”
`2.15 Receiving Party: a Party that receives Disclosure or Discovery Material
`from a Producing Party.
`3. SCOPE
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`3.1 The protections conferred by this Stipulation and Order cover not only
`Protected Material (as defined above), but also (1) any information copied or
`extracted from Protected Material; (2) all copies, excerpts, summaries, or
`compilations of Protected Material; and (3) any testimony, conversations, or
`presentations by Parties or their Counsel that might reveal Protected Material.
`However, the protections conferred by this Stipulation and Order do not cover the
`following information: (a) any information t hat is in the public domain at the time
`of disclosure to a Receiving Party or becomes part of the public domain after its
`disclosure to a Receiving Party as a result of publication not involving a violation of
`this Order, including becoming part of the public record through trial or otherwise;
`and (b) any information known to the Receiving Party prior to the disclosure or
`obtained by the Receiving Party after the disclosure from a source who obtained the
`information lawfully and under no obligation of confi dentiality to the Designating
`Party. Any use of Protected Material at trial shall be governed by a separate
`agreement or order.
` 3.2 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 or was involved in the preparation of the
`Protected Material.
` 3.3 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. Any use of Protected Material at trial shall
`be governed by the orders of the trial judge. This order does not govern the use of
`Protected Material at trial.
` 3.4 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
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`way, including, without limitation, an order that certain matter not be produced at
`all.
`4. DURATION
`Even after final disposition of this litigation, the confidentiality obligations
`imposed by this Order shall remain in effect until a Designating Party agrees
`otherwise in writing or a court order otherwise directs. Final disposition shall be
`deemed to be the later of (1) dismissal of all claims and defenses in this Action, with
`or without prejudice; and (2) final judgment herein after the completion and
`exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,
`including the time limits for filing any motions or applications for extension of time
`pursuant to applicable law and the time limits for filing a petition for writ of certiorari
`to the Supreme Court of the United States if applicable.
`5. DESIGNATING PROTECTED MATERIAL
`5.1 Exercise of Restraint and Care in Designating Material for Protection.
`Each Party or Non-Party that designates information or items for protection under
`this Order must take care to limit any such designation to specific material that
`qualifies under the appropriate standards. To the extent it is practical to do so, and
`except as otherwise provided in this Order, the Designating Party must designate
`for protection only those parts of material, documents, items, or oral or written
`communications that qualify – so that other portions of the material, documents,
`items, or communications for which protection is not warranted are not swept
`unjustifiably within the ambit of this Order.
`If it comes to a Designating Party’s attention that information or items that it
`designated for protection do not qualify for protection at all or do not qualify for the
`level of protection initially asserted, that Designating Party must promptly notify all
`other parties that it is withdrawing the mistaken designation.
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`5.2 Manner and Timing of Designations. Except as otherwise provided in
`this Order (see, e.g., second paragraph of S ection 5.2(b ) below), or as otherwise
`stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
`under this Order must be clearly so designated before the material is disclosed or
`produced.
`Designation in conformity with this Order requires:
`(a) for information in documentary form (e.g., paper or electronic
`documents, but excluding transcripts of depositions or other pretrial or trial
`proceedings), that the Producing Party affix the legend “CONFIDENTIAL” or
`“HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY” or
`“HIGHLY CONFIDENTIAL – SOURCE COD E” to each page that contains
`Protected Material.
`(b) for testimony given in deposition, that the Designating Party either
`(1) identify on the record or (2) identify, in writing, within 21 days of receipt of the
`final transcript, that the transcript shall be treated as “CONFIDENTIAL” or
`“HIGHLY CONF IDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY,” or
`“HIGHLY CONFIDENTIAL – SOURCE CODE.”
`The use of a document as an exhibit at a deposition or other pretrial or
`trial proceedings shall not in any way affect its designation as “CONFIDENTIAL”
`or “HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY,” or
`“HIGHLY CONFIDENTIAL – SOURCE CODE.”
`Transcripts containing Protected Material shall have an obvious legend
`on the title page that the transcript contains Prote cted Material. Any transcript that
`was not designated on the record pursuant to the first paragraph of S ection 5.2(b)
`above shall be treated during the 21- day period for designation as if it had been
`designated “HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES
`ONLY” in its entirety. After the expiration of that period or as of such earlier time
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`that such transcript is designated , the transcript shall be treated only as actually
`designated.
`(c) for information produced in some form other than documentary and
`for any other tangible items, that the Producing Party affix in a prominent place on
`the exterior of the container or containers in which the information or item is stored
`the legend “CONFIDENTIAL” or “HIGHLY CONFID ENTIAL – OUTSIDE
`ATTORNEYS’ EYES ONLY” or “HIG HLY CONFIDENTIAL – SOURCE
`CODE.” If only a portion or portions of the information or item warrant protection,
`the Producing Party, to the extent practicable, shall identify the protected portion(s)
`and specify the level of protection being asserted.
`5.3 Inadvertent Failures to Designate . If timely corrected, a n inadvertent
`failure to designate qualified information or items does not, standing alone, waive
`the Designating Party’s right to secure protection under this Order for such material.
`Upon timely correction of a designation, the Receiving Party must make reasonable
`efforts to assure that the material is treated in accordance with the provisions of this
`Order.
`6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
`6.1 Timing of Challenges. Any Party or Non- Party may challenge a
`designation of confidentiality at any time. Unless a prompt challenge to a
`Designating Party’s confidentiality designation is necessary to avoid foreseeable,
`substantial unfairness, unnecessary economic burdens, or a significant disruption or
`delay of the litigation, a Party does not waive its right to challenge a confidentiality
`designation by electing not to mount a challenge promptly after the original
`designation is disclosed.
`6.2 Meet and Confer. The Challenging Party shall initiate the dispute
`resolution process by providing written notice of each designation it is challenging
`and describing the basis for each challenge. To avoid ambiguity as to whether a
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`challenge has been made, the written notice must recite that the challenge to
`confidentiality is being made in accordance with this specific paragraph of the
`Protective Order. The parties shall attempt to resolve each challenge in good faith
`and must begin the process by conferring directly (in voice to voice dialogue; other
`forms of communication are not sufficient) within 14 days of the date of service of
`notice. In conferring, the Challenging Party must explain the basis for its belief that
`the confidentiality designation was not proper and must give the Designating Party
`an opportunity to review the designated material, to reconsider the circumstances,
`and, if no change in designation is offered, to explain the basis for the chosen
`designation. A Challen ging Party may proceed to the next stage of the challenge
`process only if it has engaged in this meet and confer process first or establishes that
`the Designating Party is unwilling to participate in the meet and confer process in a
`timely manner.
`6.3 Judicial Intervention. If the Parties cannot resolve a challenge without
`court intervention, the Designating Party shall seek relief from the Court to maintain
`the designation. Such request must be made within 14 days of the date of service of
`notice. Failure by the Designating Party to make such a request shall automatically
`waive the confidentiality designation for each challenged designation. In addition,
`the Challenging Party may seek relief by challenging a confidentiality designation
`at any time if there is good cause for doing so, including a challenge to the
`designation of a deposition transcript or any portions thereof. The burden of
`persuasion in any such challenge proceeding (whether initiated by the Challenging
`Party or Designating Party) shall be on the Designating Party.
`Unless the Designating Party has waived the confidentiality designation by
`failing to seek relief to retain confidentiality as described above, all parties shall
`continue to afford the material in question the level of protection to which it is
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`entitled under the Producing Party’s designation until the court rules on the
`challenge.
`7. ACCESS TO AND USE OF PROTECTED MATERIAL
`7.1 Basic Principles. A Receiving Party may use Protected Material that is
`disclosed or produced by another Party or by a Non -Party in connection with this
`case only for prosecuting, defending, or attempting to settle this litigation. Such
`Protected Material may be disclosed only to the categories of persons and under the
`conditions described in this Order. When the Action has been terminated, a
`Receiving Party must comply with the provisions of S ection 1 5 below (FINAL
`DISPOSITION).
`Protected Material must be stored and maintained by a Receiving Party at a
`location and in a secure manner that ensures that access is limited to the persons
`authorized under this Order.
`7.2 Disclosure of “CONFIDENTIAL” Information or Items . Unless
`otherwise ordered by the C ourt or permitted in writing by the Designating Party, a
`Receiving Party may disclose any information or item designated
`“CONFIDENTIAL” only to:
`(a) the Receiving Party’s Outside Counsel of Record in this action, as
`well as employees of said Outside Counsel of Record to whom it is reasonably
`necessary to disclose the information for this litigation;
`(b) Experts (as defined in this Order) of the Receiving Party, to whom
`disclosure is reasonably necessary for this litigation and who have signed the
`“Acknowledgment and Agreement to Be Bound” (Exhibit A);
`(c) the Court and its personnel;
`(d) court reporters and their staff;
`(e) professional jury or trial consultants including mock jurors who
`have signed a confidentiality agreement , and Professional Vendors to whom
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`disclosure is reasonably necessary for this litigation and who have signed the
`“Acknowledgment and Agreement to Be Bound” (Exhibit A);
`(f) during their depositions, witnesses in the action to whom disclosure
`is reasonably necessary, with consent of the Designating Party or as ordered by the
`Court and who have signed the “Acknowledgment and Agreement to Be Bound”
`(Exhibit A);
`(h) the author or recipient of a document containing the information or
`a custodian or other person who otherwise possessed or knew the information; and
`(i) any mediator or settlement officer, and their supporting personnel,
`mutually agreed upon by any of the parties engaged in settlement discussions.
`7.3 Disclosure of “HIGHLY CONFIDENTIAL – OUTSIDE
`ATTORNEYS’ EYES ONLY” Information or Items. Unless otherwise ordered by
`the Court or permitted in writing by the Designating Party, a Receiving Party may
`disclose any information or item designated “HIGHLY CONFIDENTIAL –
`OUTSIDE ATTORNEYS’ EYES ONLY” only to:
`(a) the Receiving Party’s Outside Counsel of Record in this action, as
`well as employees of said Outside Counsel of Record to whom it is reasonably
`necessary to disclose the information for this litigation;
`(b) Experts (as defined in this Order) of the Receiving Party, as well as
`up to four (4) employees of said Experts, (1) to whom disclosure is reasonably
`necessary for this litigation, (2) who have signed the “Acknowledgment and
`Agreement to Be Bound” (Exhibit A), and (3) for Experts only, as to whom the
`procedures set forth in paragraph 7.5(a), below, have been followed;
`(c) the Court and its personnel;
`(d) court reporters and their staff;
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`(e) professional jury or trial consultants including mock jurors who
`have signed a confidentiality agreement , and Professional Vendors to whom
`disclosure is reasonably necessary for this litigation and who, except for copy
`vendors, have signed the “Acknowledgment and Agreement to Be Bound”
`(Exhibit A);
`(f) the author or recipient of a document containing the information or
`a custodian or other person who otherwise possessed or knew the information;
`and
`(g) any mediator or settlement officer, and their supporting personnel,
`mutually agreed upon by any of the parties engaged in settlement discussions.
`7.4 Disclosure of “HIGHLY CONFIDENTIAL – SOURCE CODE”
`Information or Items. Unless otherwise ordered by the Court or permitted in writing
`by the Designating Party, a Receiving Party may disclose any information or item
`designated “HIGHLY CONFIDENTIAL – SOURCE CODE” only to:
`(a) the Receiving Party’s Outside Counsel of Record in this action, as
`well as employees of said Outside Counsel of Record to whom it is reasonably
`necessary to disclose the information for this litigation;
`(b) Experts (as defined in this Order) of the Receiving Party (1) to
`whom disclosure is reasonably necessary for this litigation, (2) who have signed the
`“Acknowledgment and Agreement to Be Bound” (Exhibit A), and (3) as to whom
`the procedures set forth in paragraph 7.5(a), below, have been followed;
`(c) the Court and its personnel;
`(d) court reporters and their staff;
`(e) professional jury or trial consultants including mock jurors who
`have signed a confidentiality agreement,
` and Professional Vendors to whom
`disclosure is reasonably necessary for this litigation and who have signed the
`“Acknowledgment and Agreement to Be Bound” (Exhibit A);
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`(f) the author or recipient of a document containing the information or
`a custodian or other person who otherwise possessed or knew the information; and
`(g) any mediator or settlement officer, and their supporting personnel,
`mutually agreed upon by any of the parties engaged in settlement discussions.
`7.5 Procedures for Approving or Objecting to Disclosure of “HIGHLY
`CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY” or “HIGHLY
`CONFIDENTIAL – SOURCE CODE” Information or Items to Designated Experts.
`(a) Unless otherwise ordered by the Court or agreed to in writing by the
`Designating Party, a Party that seeks to disclose to an Expert (as defined in this
`Order) any information or item that has been designated “HIGHLY
`CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY” or “HIGHLY
`CONFIDENTIAL – SOURCE CODE” pursuant to Sections 7.3 and 7.4 first must
`make a written request to the Designating Party that (1) sets forth the full name of
`the Expert and the city and state of his or her primary residence, (2) attaches a copy
`of the Expert’s current resume, (3) identifies the Expert’s current employer(s), (4)
`identifies each person or entity from whom the Expert has received compensation or
`funding for work in his or her areas of expertise or to whom the Expert has provided
`professional services, including in connection with a l itigation, at any time during
`the preceding five years and the party to the litigation for whom such work was done,
`and (5) identifies (by name and number of the case, filing date, and location of court)
`any litigation in connection with which the Expert has offered expert testimony,
`including through a declaration, report, or testimony at a deposition or trial, during
`the preceding five years. With regard to the information sought through part (5) of
`this disclosure, if the Expert believes any of this information is subject to a
`confidentiality obligation to a third party, then the Expert should provide whatever
`information the Expert believes can be disclosed without violating any
`confidentiality agreements.
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`(b) A Party that makes a request and provides the information specified
`in the preceding respective paragraphs may disclose the subject Protected Material
`to the identified Designated Expert unless, within 7 days of delivering the request,
`the Party receives a written objection from the Designating Party. Any such
`objection must set forth in detail the grounds on which it is based.
`(c) A Party that receives a timely written objection must meet and
`confer with the Designating Party (through direct voice to voice dialogue) to try to
`resolve the matter by agreement within seven days of the written objection. If no
`agreement is reached, the Party seeking to make the disclosure to the Expert will
`have 10 days from the date of the meet and confer to seek relief form the Court. If
`relief is not sought from the Court within that time, the request for disclosure shall
`be deemed withdrawn.
`In any such proceeding, the Party opposing disclosure to the Expert shall
`bear the burden of proving that the risk of harm that the disclosure would entail
`(under the safeguards proposed) outweighs the Receiving Party’s need to disclose
`the Protected Material to its Expert.
`8. PROSECUTION BAR
`Absent written consent from the Producing Party, any individual who receives
`access to “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or
`“HIGHLY CONFIDENTIAL – SOURCE CODE” information shall not be involved
`in the prosecution of patents or patent applications relating to video streaming and/or
`content recommendation systems including without limitation the patents asserted
`in this action and any patent or application claiming priority to or otherwise related
`to the patents asserted in this action, before any foreign or domestic agency,
`including the United States Patent and Trademark Office (“the Patent Office”). For
`purposes of this paragraph, “prosecution” includes directly or indirectly drafting,
`amending, advising, or otherwise affecting the scope or maint enance of patent
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`claims. To avoid any doubt, “prosecution” as used in this paragraph does not include
`representing a party challenging or defending a patent before a domestic or foreign
`agency (including, but not limited to, a reissue protest, ex parte reexamination or
`inter partes review), so long as that representation does not involve directly or
`indirectly drafting, amending, advising, or otherwise affecting the scope or
`maintenance of patent claims . This Prosecution Bar shall begin when access to
`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY
`CONFIDENTIAL – SOURCE CODE” information is first received by the affected
`individual and shall end two (2) years after final termination of this action.
`9. SOURCE CODE
`(a) To the extent production of source code becomes necessary in this case,
`a Producing Party may designate source code as “ HIGHLY CONFIDENTIAL –
`SOURCE CODE” if it otherwise meets the requirements of Paragraph 2.9.
`(b) Protected Material designated as “HIGHLY CONFIDENTIAL –
`SOURCE CODE” shall be subject to all of the protections afforded to “HIGHLY
`CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY” information
`including the Prosecution Bar set forth in Paragraph 8 and may be disclosed only to
`the individuals to whom “HIGHLY CONFIDENTIAL – SOURCE CODE”
`information may be disclosed, as set forth in paragraph 7.4.
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`(c) Any source code produced in discovery shall be made available for
`inspection, in a format allowing it to be reasonably reviewed and searched, during
`normal business hours (9:30 am to 5:30 pm local time) or at other mutually agreeable
`times, at an office of the Producing Party’s Counsel, or another mutually agreed
`upon location. Regarding source code format, source code shall be made available
`for inspection in a readable format, as it is normally kept in the ordinary course of
`business including source code comments, makefiles, and documents that may be
`embedded or stored with the Source Code material. The computer containing source
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`code will be made available upon reasonable notice to the Producing Party, which
`shall not be less than five (5) days’ notice prior to the first requested inspection and
`three (3) days’ notice in advance of any additional inspections. The Producing Party
`will attempt in good faith to make source code available for review on a shorter
`notice timeline where reasonably practicable, and in view of case deadlines. The
`source code shall be made available for inspection on a secured computer in a room
`without Inte rnet access or network access to other computers, and the Receiving
`Party shall not copy, remove, or otherwise transfer any portion of the source code
`onto any recordable media or recordable device. The secured computer shall ha ve
`disk encryption and be password protected. All persons viewing Source Code shall
`sign on each day they view Source Code a log that will include the names of persons
`who enter the secured room to view the Source Code and when they enter and depart.
`A Receiving Party may bring one non-networked laptop computer (with any internet,
`network, and camera capabilities disabled) into the secure room with the Source
`Code Computer for purposes of taking notes only, subject to the limitations set forth
`in this Section. Use or possession of any other electronic device or input/output
`device (e.g., USB memory stick, mobile phone or tablet, camera or any camera -
`enabled device, CD, floppy disk, zip drive, portable hard drive, laptop, any cellular
`or other telephones, personal digital assistants (P DAs), Blackberries, voice
`recorders, Dictaphones, telephone jacks, or any device that can access the Internet
`or any other network or external system, etc.) is prohibited while accessing the
`Source Code Computer. The Producing Party may visually monitor the activities of
`the Receiving Party’s representatives during any source code review, but only to
`ensure that there is no unauthorized recording, copying, or transmission of the source
`code.
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`(d) The Producing Party will, upon request, provide a secure breakout room
`for the Receiving Party’s representatives to use during the inspection where
`computers, cell phones, and other electronics are permitted.
`(e) The Producing Party will, upon request by the Receiving Party, provide
`up to three (3) paper copies of limited portions of source code for any one source
`code release. The Receiving Party shall not request paper copies for the purposes of
`reviewing the source code other than electronically as set forth in Section 7(c) in the
`first instance. Using the software available on the Source Code Computer, the
`Receiving Party shall create PDFs of the printed copies the Receiving Party is
`requesting and save them in a folder on the desktop of the Source Code Computer
`named “Print Requests” with a subfolder identifying the date of the request. The
`PDF printouts must include identifying information including the file path and file
`name, page number, line numbers, a nd date of printing. The request for printed
`Source Code shall be served via an email request identifying the subfolders of the
`“Print Requests” folder that the Receiving Party is requesting. Within five (5)
`business days of such request, the Producing Party shall provide up to three (3 )
`copies of all such source code on watermarked and/or colored paper including bates
`numbers and the label “HIGHLY CONFIDENTIAL – SOURCE CODE.” If the
`request is served after 5:30 pm Eastern Time, it shall be deemed served the following
`business day. The Producing Party may challenge the amount of source code
`requested in hard copy form pursuant to the dispute resolution procedure set forth in
`Section 6 whereby the Producing Party is the “Challenging Party” and the Receiving
`Party is the “Designating Party” for purposes of dispute resolution. The Receiving
`Party may request no more than 20 consecutive pages, or an aggregate of more than
`200 pages per build (but not to exceed 5 00 total pages), of Source Code during the
`duration of the case without prior written approval of the Producing Party, and such
`approval shall not be unreasonably withheld.
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`(f) In instances where materials designated “HIGHLY CONFIDENTIAL
`– SOURCE CODE” are commingled with “CONFIDENTIAL” and/or “HIGHLY
`CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY” materials in a source
`code repository with version control (including but not limited to GitHub, Apache
`Subversion, Perforce, AWS CodeCommit, or CVS Version Control), a software
`development kit, or other installable package, the Producing Party may produce all
`such commingled materials on a source code review computer, provided that any
`requests to print non- source code materials do not count toward the presumptive
`paper copy printing limits in Section 8(e). In addition, the Producing Party will, upon
`request by the Receiving Party, electronically produce commingled materials
`properly designated as “CONFIDENTIAL,” and/or “HIGHLY CONFIDENTIAL –
`OUTSIDE ATTORNEYS’ EYES ONLY” in their native format, with any source
`code redacted.
`(g) The Receiving Party shall maintain a log of all paper copies of the
`Source Code. The log shall include the names of the reviewers and/or recipients of
`paper copies and locations where the paper copies are stored. Upon five (5) business
`days’ advance notice to the Receiving Party by the Producing Party, the Receiving
`Part