UNITED STATES INTERNATIONAL TRADE COMMISSION
`
`Washington, D.C.
`
`Inv. No. 337—TA—850
`
`.
`
`
`
`
`In the Matter of CERTAIN ELECTRONIC IMAGING
`
`DEVICES
`
`ORDER NO. 9:
`
`GRANTING IN PART AND DENYING IN PART
`COMPLAINANT’S MOTION TO AMEND THE PROTECTIVE
`
`ORDER
`
`-
`
`(October 02, 2012)
`
`On August 23, 2012, complainant FlashPoint Technology, Inc., (“FlashPoint”) filed a
`
`motion to supplement the protective order as it relates to source code. (Motion Docket No. 850-
`
`004).
`
`On September 4, 20l2, Respondents HTC Corporation and HTC America,
`
`Inc.
`
`(collectively, “I-ITC”) filed an opposition to FlashPoint’s Motion and proposed their own
`
`amendment to the protective order. On September 7, 2012, FlashPoint filed a Motion for Leave
`
`to Reply to HTC’s Opposition.
`
`(Motion Docket No. 805-005.) On September 10, 2012, HTC
`
`filed an Opposition to FlashPoint’s Motion for Leave to Reply.
`
`Flas}zP0intl’s Compliance with GR. 3.2
`
`The parties dispute whether good cause exists for FlashPoint’s reply. FlashPoint argues
`
`that good cause exists for its reply because it was necessary to address certain factual
`
`inaccuracies and mischaracterizations in HTC’s opposition. (Reply at l.) HTC argues that it did
`
`not misrepresent the facts, and that FlashPoint is using the reply to merely re-argue its motion.
`
`(Reply Opp. at 2.) The ALJ agrees with FlashPoint, thus FlashPoint’ssmotion for Leave to Reply
`
`is hereby GRANTED.
`
`

`
`In the context of HTC’s G.R. 3.2 argument, HTC only mentioned FlashPoint’s August 22
`
`threat to file its motion in order to argue it was only given a single day’s notice.
`
`(Opp. at 5.)
`
`However, as F1ashPoint highlights in its reply, FlashPoint threatened HTC with this motion in
`
`writing to on August 17.
`
`(Reply at 3.) It was not until HTC’s opposition to the reply that HTC
`
`chose to recognize the August 17 communication. (Reply Opp. at 3, FN 5.) Thus, it appears that
`
`HTC at least selectively disclosed the facts relevant to its G.R. 3.2 argument. Therefore, the ALJ
`
`finds good cause for filing the reply.
`
`Furthermore, the ALJ finds that FlashPoint has satisfied G.R. 3.2. FlashPoint argues that
`
`GR. 3.2 only requires that the parties make reasonable, good—faith efforts to contact and resolve
`
`disputes without resorting to motions practice.
`
`(Reply at 5.) FlashPoint further argues that
`
`discussions and agreements between the parties subsequent to the August 17 notice should not
`
`invalidate that notice. (Reply at 4.) HTC argues that the August 17 notice was nullified because
`
`FlashPoint did not follow through on its threat to file the motion on August 20. (Reply Opp. at 3,
`
`FN. 5) The ALJ agrees with FlashPoint.
`
`It is true that FlashPoint failed to follow through on its
`
`threat to file the motion on August 20. However, FlashPoint’s decision to entertain further
`negotiations with HTC is what delayed the tiling date to August 23. (Reply at 4.) The ALJ finds
`
`that FlashPoint has made reasonable, good-faith efforts to resolve the dispute at least since
`
`August 17 and that FlashPoint satisfied the requirements of G.R. 3.2.
`
`The location ofsource code computerfor review
`
`FlashPoint proposes an amendment to 1ll8(C)(iii) which would require HTC to make a
`
`source code computer available for attorney review in Perkins Coie’s Washington, D.C. office.
`
`(Mot. at 8-9.) HTC’s proposed amendment to ‘ill 8(C)(iii) would require HTC to provide a source
`
`

`
`code computer available for attorney review in Perkins Coie’s San Diego, CA office, subject to
`
`1[l8(C)(xii)(6).
`
`(Opp. at 2-3.) FlashPoint admits it is amenable to storing one source code
`
`computer in San Diego, CA. (Mot. at 9.) Thus, a source code computer shall be stored in San
`
`Diego, CA. The ALJ will address HTC’s proposed amendment to 1l18(C)(xii)(6) below.
`
`I/Wtether the burden placed on HTC by providing two source code computers is outweighed by
`FZashP0int ‘S interest in more efiicient discovery.
`
`FlashPoint proposes an amendment to 1ll8(C)(xii)(6) that would require HTC to provide
`
`a source code computer during depositions of expert and 30(b)(6) witnesses. (Mot. at 7-8.) HTC
`proposes an amendment to ‘|ll8(C)(xii)(6) that, when read in conjunction with 1]18(C)(iii), would
`
`merely require HTC to make a source code computer available in San Diego, CA for review, and
`
`then ship that same computer to Taiwan for the first deposition where it would remain for the
`
`duration of the investigation. (Opp. at 3-4.)
`
`The ALJ finds that FlashPoint’s interest
`
`in more efficient discovery outweighs the
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`economic burden and security concerns that HTC alleges may be realized if a second source
`
`code computer is produced. HTC’s security concerns are primarily undercut by the fact that the
`
`depositions and the second source code computer will be at an HTC facility in Taiwan. (Reply at
`
`7.) Furthermore, the ALJ finds that the time and expense that FlashPoint would incur traveling
`
`back and forth from Taiwan for post-deposition review would be unduly burdensome and
`
`outweighs the cost to HTC to provide a second copy of the source code, especially on the fast
`
`discovery timeline provided at the ITC.
`Source Code Review Log Requirements
`
`FlashPoint and HTC primarily disagree about the timing of the disclosure of the log.
`
`FlashPoint stated it was amenable to HTC’s proposed amendment, except that FlashPoint
`
`

`
`proposes a post-decision disclosure time.
`
`(Mot. at 10.) FlashPoint suggests that post—decision
`
`disclosure is appropriate so that HTC could not use the information to improperly impeach
`
`FlashPoint experts during the investigation. (Mot. at 10.)
`
`The ALJ finds that the time-specific access information should be provided in the log as
`
`proposed by HTC.‘ FlashPoint does not cite any authority for the position that using the log
`
`information to impeach witnesses is improper. Moreover, the ALJ finds that the alleged abuse
`
`and prejudice FlashPoint fears is outweighed by the potential relevance of the information,
`
`however minimal, to the credibility of expert witnesses.
`
`For the reasons set forth above, Order No. l is hereby amended to add 1ll8 as set forth
`
`below:
`
`
`
`18.
`mo- .
`. 9-" . A supplier may designate documents, information, or things as
`
`“ ONWDENTIAL SOURCE C‘ODE-——ATTORNEY’S nBn ONLY INFORMATION,” which
`shall mean Litigation Material of a supplier or of any nomparties that a supplier is permitted to
`produce in n investigation that constitutes or contains non-pubiic n Code.
`
`“Source Code” includes human-readable Pn In Pnn «go text that
`A.
`
`V defines software, firrnware, or electronic hnrdweee descriptions. Source Code also
`includes source code files, which are text files containing source code. n
`include, but are not limited to, files containing l$n code written in “C,” “C‘++,”
`assembler, VI-IDL, Verilog, and digital signal processor (“DEF”) programming
`langoagm, as well as “.include files,” “make” files, link files, and other human-
`readable text files used in the generation and/or building of software directly
`executed on a microprocessor, micro»-controller, or DSP. Source Code does not
`include binary executable files and object code files, nor does it include tools such
`as compilers or linkers}
`
`1 The ALJ notes that the terms of1} l 8(C)(v) appear to require logging the amount of time “Outside Litigation
`Counsel” have spent reviewing source code, which could be considered work product. By adopting 1ll8(C)(v) as
`proposed by HTC, the ALJ does not consider any work product privilege waived (absent some affirmative waiver of
`such privilege). In other words, the requirement that the amount of time spent reviewing source code be produced
`during discovery is limited to the amount of time experts or any other witnesses have spent reviewing source code
`and does extend to any work covered under the work product privilege.
`
`2 The parties agree that binary executable files and object code files do not need to be produced and
`that to the extent binary executable files and object code files are produced, they shall be afforded the same
`protection as other "Source Code" defined in this section.
`
`

`
`“CONFIDENTIAL SGURCE €3€}i)E--
`as
`designated
`Materials
`B.
`A'l""F0%RNEY’S EYES ONLY INFGRMATIG ‘,"’ shall only be eevievmble by
`SOURQE CODE QUALIFIED PERSONS.
`SCFUERCE CODE QUALIFIED
`PIERSCJNS include the following: (E) Qutsiele Litigation Counsel as neeeseafily
`incident
`to the litigation of this Investigation;
`(123 personnel at document
`cluplioation, eocllng imaging or seeming servioe establishments retained by, but
`not regularly employed by, Outside Litigation Counsel, but only as neceseerily
`incident to depositions and trial in the litigation of cDn Investigation; (3) the
`Commission, time Adlnieistrative Law Judge, the Commission lovestiga-five Staff,
`Commission personnel and contract personnel who are eolzing in the capacity of
`Commission employees as indicated in pemgreph 3 of this Protective Order; (4)
`court
`reporters,
`stenographers and videog1*ap~hers
`treoecfibing or
`recording
`testimony at éepoeitions, hearings or trial in this Investigation; and {5} Qoaliflecl
`Consultants anxclfor Qualified Experts; in this Invesiigekion {easier poragoph ll’ of
`this Protective Order in this Investigation). However, Qualified Consultants
`amzvor Qwalifiecl 0nn may only review CCINFXDENTIEAL $<}URCE CODE»—«
`AT'1‘ORNEY’S EYES ONLY INFORMATION after being expressly idemlfied to
`the supplier as
`seeking access
`to CONFXDENTIAL SOURCE CODE»——-
`ATTORNEY"$ E‘fI:"£S ONLY INFORMATION. if the receiving party vvishes an
`already identified Qualified Consultant or Qualified Expert
`to receive
`CONFIDENTIAL
`SOURCE
`COLDE-——A'fT()R.NEY’S
`EYES
`QNLY
`
`INFORMATIQN it must re-comply with the provisions of paragraph 11 of this
`Protective Order
`in this investigation,
`including allowioxg the supplier an
`opportunity to obiect to this Qualified Consultant or ,`n Expert receiving
`CONFIDENTEAL
`SOURCE
`CODE»——~ATTORNEY"S
`EYES
`ONLY
`
`INFORMATION, and identify the proposeo Qualified Consulitsam or Qualified
`Export as ooeking access to CONFIDENTIAL SGURCE EZGDE-—-ATTORNEY’S
`EYES ONLY INFORMATION. If a supplier objects to a Quelifieé Consultant or
`Qualified Expert receiving CONFIDEN”l"IAL SGURCE CODE ~A'l”TORNEY’S
`EYES QNLY INFORMATIGN, while the ooieotion is pending pursuant
`to
`paragaph ll of this Frotective Order, supplier shall have no obligation to provicle
`CONFIDENTIAL
`SOURCE CGDE ~ AT"l‘QR;NEY’S
`EYES ONLY
`
`the
`INFORMATIDN to the Qualified Consultant or Qualified Expert until
`objection is removed. All SOURCE CGDE QUALEFIEB PERSONS desigmted
`under paragraphs l8(B)(1), 18(B)(2), and 18(B){5) shell agree to be bound by the
`terms of the Protective Order, and specifically those provisions governing
`SOURCE CODE QUAHFIED PERSONS before reviewing Source Code or
`relevant files. A receiving party may designate no more than ten (10) persons as
`‘SOURCE CODE QUALIFIED PERSONS under l8(B)(5) to review a particular
`supplying party’s Source Code. The same person may be designated under
`l8(B)(5) to review the Source Code of multiple supplying parties, subject to the
`ten (10) person total limitation.
`
`C.
`
`Source Code shall be provided with the following ocldltional protections:
`
`

`
`Nothing Nn this Protective Order snail obiiiga-te the parties to produce any
`{i)
`Source Code, nor act as an avzimission that any particular Source Code is
`discoverabte.
`
`Access to Source Code wiil be given only to SQURCE CODE
`(ii)
`QUAHFIED PERSONS.
`
`Access to each supplier’s Source Code shall be provided on a “stand-
`(iii)
`alone” computer (that
`is,
`the computer may not be linked to any network,
`including a local area network (“LAN”), an intranet, or the Internet and may not
`be connected to any printer (unless as otherwise permitted in this Section C) or
`storage device other than the internal hard disk drive of the computer). Each
`stand-alone computer shall be kept in the following secure locations: FlashPoint
`will make its Source Code available for inspection in Pepper Hamilton’s
`Washington, D.C. office; HTC will make its Source Code available for inspection
`in Perkins Coie’s San Diego, CA office; ZTE will make its Source Code available
`for inspection in its Richardson, Texas Facilities; Pantech will make its Source
`Code available for inspection in H.C. Park & Associate’s Northern Virginia
`office; and Huawei will make its Source Code available for inspection in
`Morrison Foerster’s San Diego, California office. Each stand—alone computer
`may also be kept at such other location as the supplying party and receiving party
`mutually agree. Each stand-alone secure computer may be password protected
`and shall have the Source Code stored on a hard-drive contained inside the
`
`computer. The supplier, at its sole discretion, may choose to Waive any or all of
`the default requirements in this paragraph 19 for its own convenience.
`
`The supplier shall produce Source Code in computer searchahie format on
`{iv}
`the stand-alone computer. 0zn stand-alone computer shall, at the receiving
`party’a request,
`include ieasonabie analysis tools appropriate for the type of
`Source Code. The receiving party shall provide the tools that it wishes to use to
`the supplier so that the supplier may install such tools on the standalone
`computers. The receiving part}/‘s Outside Litigation Counsel audios‘ experts may
`request that commercially avaiiahlc software tools for viewing and searching
`Confidential Source Code be instaiied on the secured computer, provided,
`however, that such other sofiware tools are reasonably necessary for the receiving
`party to perforrn its review of the Confidential Source Code consistent with all of
`the protections herein. The receiving party must provide the supplying party with
`the CD or DVD containing such licensed software tooi(s) at cn five (5) days in
`advance of the date upon which the receiving party wishes to have the additional
`software tools available for use on the Confidential Source Code Computer. The
`receiving party shall not at any time use anykcompilers, interpreters or simulators
`in
`connection with the
`supplying
`party's Confidential Source Code.
`
`The receiving party shall make reasonable efforts to restrict its requests for
`(V)
`access to a standalone computer to normal business hours, which for purposes of
`this Paragraph shall he
`
`

`
`9:00 am. through 6:00 pm. local time at the reviewing location on 24 hours
`notice pursuant to
`Section C (vi) below. Notice must be given during regular business hours, and the
`hours that the Source Code will be made available shall not be altered based upon
`the timing of the notice. Upon reasonable notice from the receiving party, which
`shall not be less than three (3) business days in advance, the supplier shall make
`reasonable efforts to accommodate the receiving party’s request for access to the
`computers outside of normal business hours. Such an expanded review period
`shall not begin earlier than 8:00 am. and shall not end later than 8:00 pm. local
`time at the reviewing location. The parties agree to cooperate in good faith such
`that maintaining the Source Code at
`the offices of the supplier’s Outside
`Litigation Counsel or other designated location shall not unreasonably hinder the
`receiving party’s ability to efficiently conduct the prosecution or defense in this
`Investigation. The parties reserve their rights to request access to the Source Code
`at the site of any hearing or trial. The supplier may require proper identification of
`all SOURCE CODE QUALIFIED PERSONS before any access to a stand—alone
`secure computer, and each and every time a person accesses a stand-alone secure
`computer, the supplier may require each SOURCE CODE QUALIFIED PERSON
`to complete a Source Code review log maintained by the supplier’s Outside
`Litigation Counsel identifying: (1) the person’s name; (2) the date and time access
`began; (3) the date and time access ended.
`
`Ali SOURCE CODE QUALIFIED PERSONS who wiii review Source
`(vi)
`Code on behalf of a receiving mrty shaii be identified in writing to the mrppiier at
`ieast seven 6’) business days in advance of the first time that such &amp;cn reviews
`such Source Code. Such identification shaft be in addition to any disctosare
`required @Xn paragaph 18(3) of this Protective Order. The supplier dVn
`provide these individuals with inforinatiea eapsiiaining how to operate l3itfi$ffln€i-
`alone’ nnn Pnn order to access the p#Rn Source Code on the stazid-alone
`secure carnp-titers For each initial review by a SOURCE CODE QUALIFIED
`PERSON, the receiving party shall give at feast 36 hours notice to the supplier of
`such SOURCE CODE QUALIFIED PER.S:€}N’S ‘review. For any subsequent
`reviews by such n~n CODE QUALEFIED WZRSIGNS, the receiving party
`shail give at Iwst 24 hours notice to nn snppiicr of such review. Notice n be
`given nn reguiar business hours, and the :n that the source it wiil be
`made avaitabie shat} not be altered based :Un 0n @vn of thenetice.
`
`hie person other than the supplier may alter, disrrwattie, m’sa.ssetnbie or
`(vii)
`modify )n standaiione computers in any way, or attempt to circumvent any
`secusrity feature of the computers. In order to nn that its Confidential Source
`Code has not later been altered, the suppiyiag party nn Pnn materiais
`to confirrn that n%n rnateriais have not been aitered before and after they are
`provided but shah not instatl any keystroke or other monitoring software on the
`Confidential Source Code Computer. <n the period of source code review,
`Sn stand-atone computer shalt be in a secured mom accessed by dn SOURCE
`CODE QUALEFIED PERSONS and such individuals
`take reascnabte steps
`
`

`
`to ensure that me semen of the atanfiwtone csomgpmcr is in a poséfitm main flwt it is
`not viawable fhmugh any of the m0m’s nazénéiews at dmrrs.
`
`(viii) N0 capies shaii be maacle of Swoume Corie, whether ghysical, eiecfivnic, er
`othenwise, other than voiafiie cepies necessafily nmde in &1e marina} cmwse af
`acceasing the Marne Curie on the stand-alane camputers, cwxeept .far: (1) print outs
`of reasonable parfians 95!’ $116 Sxcmrce Genie in acoemiance with the pmvisicms of
`paragraphs 18~(C}(xi)-(xii) of this Protactive Order; and (2) such ather uses to
`which the parties may agreze or that
`the Atkministrative Law Judge 01‘ the
`Commissiezm may merrier. Priming pcmtimxs of Saurce Code that exceed 50
`cxmtimzotzs pages er ten pereent or more of the entire n Code software
`release {the n executable ccvde mmpiled upon an imporeeé device) ska}! be
`rebuttabiy presumeé to be excessive and n be clone for a pennitted purpose
`absent am order fiscm the AL]. The receiving party shall not print Smtme Cmzte in
`Dfdfii’ to: review blacks of Source Ceée eisewhere in the firsi; in~s£w1ce;, i.e., as an
`aitemative to reviewing En Samoa Cede eiectrcmioally on the s1;ané—&1one
`computcrg as the parties acknowledge mt! agree mat
`the purpose ef the
`preteations herein wouid be fmsirated by gurinting portinns of Snuxce Corie far
`review and analysis elsewhere, anci that printing is permitted soleky to cnabie use
`cf Source Ccade in fiiings, écitions, proceedings, expert mports, and reiated
`drafts and! cszmespmadcnce. No autisieie electronic devices,
`inciuciing but not
`finziteni ta Iaptap computers, USE flash ehriwms, zip dszives, 0311 phones, portable
`printers, or devices with cm-wra fixmfianakifins shall be permétted in the same
`room as the standwaiane mmputem. The supplier may exercise Pcn
`supervision fmm cmtsiée we review team ever the receiving party when the
`receiving party is £12 the Source Code review !n Such mgyervision, Emwever,
`shall not mm?! review of any work product germratexi by the receiving party, e.g.,
`manitorixig the n of the siaxxd-alene ccrmpmers, n any surface
`reflecting any notes at wmk pmduct ef the nn party, 61‘ monitoring the lazy“
`strokes of Vn receiving party. 0uyn Wm he no videe nn by any mppfier.
`
`Any hanciwrittan flutes 91' ether wcxflv; pmduct, created by the receiving
`(ix)
`party, reflecting CCINFIDENTIAL SOURCE CODE — ATTORNEWS EYES
`ONLY ENFORMATION shall be masked as CONFIDENTIAL SOURCE COBB
`— AT"I‘0RNEY""3 `nn ONLY INFORMATION and sizail also be twareect as
`“Source Cede” 7n to this paragraph.
`
`(X) Mnn %n be removed fiam the stanébaiane camputers, either by n
`nsceiving party 91* at the request of =n receiving party, except fur (B print outs of
`reasonable poreiens {sf the Source {Emile in accorziazzce with the pmvizaiuns of
`paragraphs }3a(C)(xi}-(xii) sf this Protective Qrder; and (2) such eiher uses ‘at:
`which the partias may agrese or that
`the Aciznixzisiratiive Law Ridge at the
`Commission may order.
`'
`
`A1} eriginai printed pages (if Source Code shafi be retainL by n
`(xi)
`suppiying sn At the request of the receiving party, the suppfier aim}! n
`
`

`
`three (3) bustnese days {er suener if eeetried for a depesitien er fitieg)n e
`(I) hard copy print out at‘ the epeczific Iir-tee, pages, at files of the Source Code that
`the receiving party believes in good faith are necessary to understand a relevant
`feature ef an accused precinct. Durittg the review of Seurce Code, if a receiving
`party believes in good faith that eentemperaneous access te print-«outs of
`particular pages 9’? the Seurce Cede is necessary to further the Source Code
`review, the receiving party may request and the supplier shalt promptly provide
`one (1) Knn eepy print out of each pages. A11 printed cepies of such Source Code
`shall be retumed te the supptying party after such contemporaneeus accees by the
`receiving party. The receivirsg party shall limit its requests fer eentemporeeeous
`access to print outs te those pages actttaifty necessary to conduct the Source Code
`review. If the sepprlier objects; to the preductien of the requested Seuree Cede
`because the requeet ie excessive, it $119.11 state its objeeetiecm `Bn the allotted three
`(3) busirtees days pursuant to this n u \ ta. Fer purposes ef this pexegmph,
`
`ptinteci pertiens ef Source Code that exceed 50 continuous pages er ten pereent or
`more of the entire Seurce Cede eefiware reiease (the final exeeutabfe cede
`comptied upon an imparted device) shat! he tebuttabrly presumeé to be excessive
`and eannet be dene fer a permitted )n absent an enter from the AL}. In the
`event of a dispute, the patties wit} meet and confer pmn five (5) business days
`ef the cb}ection being raised and if they cannot resolve it the parties will raiee it
`with the AL}.
`
`(xii) Hard cepy print outs eat‘ Smtree Code shall be provided on hates numbered‘,
`watermarked, and catered paper eleeriy lebeted CONFIDENTIAL SOURCE
`CODE—-ATTORNEY’S EYES ONLY INFORMATION on each page 0nn shalt
`be maintained by the receiving party’s C}u=teicte Litigatiea Counse} er SOURCE
`CODE QUALIFIED PERSONS Vn a eeeurw locked area. The receiving party
`may not mail printed copies ef Source Code or othexwise place printed cepies of
`Source Code in the custody ef indiviciruels other
`than SOURCE CODE
`QUALIFIED PERSONS. The reeeiving party may also temporazriiy keep the print
`eats at: (a) the Cemmissien for any pmceedingds) relating to the Smtrce Code,
`n pteeeec:ting(s);
`fer the dates associated
`(b)
`the sites where any
`depositien(s) relating to the Seuree Code are taken, for the dates associated; with
`the dep0sition(s); and (c) any intermediate location reasonebiy necessary to
`tzranspozt the print euts (age, a hate} prior to a Commission preceeding or
`deposition). The receiving party shalt exercise due care in maintaining the
`eeeutity of the print outs at these temporary lecatiens. Ne fixrther hard cepies of
`such Source Code shell be matte and the ‘Source Code shall not be transferred into
`
`any electronic format or ante my eiectrenic media except that:
`
`For etepesitiene, upen election by the receiving party, it may make
`1.
`three additional eepies ef the printed Source Code for use at depositions
`(fact/expert), amt only seek printed copies may be used at the depositinns
`and any hearing at trial in this Action. Further, to the extent that the
`receiving party, pursuant to sectien 18{C)(Xi) requests hard eepy print outs
`of Source Cede withtn five (5) days prior to the depositten, the ‘receiving
`
`

`
`P Shaii have the app-axtunity to requesft copies of such Source Ccade to
`be previded at the depositinn by 1:114: aupplaying Ynn All copies are ta be
`pzimed an wamrznarked, ceior paper and c-Ieafly lafieted CONFIDENTIAL
`SGURCE C0'DE~—ATTORNEY’S EYES GNLY INFORMATION can
`extent mat any Source Cade @nn prinitexit out fax use at a
`each page. T9
`depasitian, and such Smmcc Game is marked aa an exhfihit, the marked
`originak exhibit shail be maintained by the sttpplying nn unti} trial. AH
`ofher copies used at a clwosition ma}! ba destmyed or retumed to the
`supplying party, except that this provision ciees not prevent the attamey
`taking tha deposition from bringing personafiy to the deposition a
`Qualified Expertz‘C0nsuItant n czopy
`provided
`under
`sectien
`I8{C){xii)(4) that centains mark prmziuct motes far the taking of the
`depnaition, with such attomey Gn gush copy at the end of the
`deposétian.
`
`The receiving P1n is pennitfied ta make up to five (5) adrditienai
`2.
` n copies for the Commissian in wmwction with a Cemrnisxion filing,
`hearing, or triai, and if only the specific pages direcfly reievant to and
`necessary far deciding the isgue for which the portions 9f the Source Cede
`are being filed or offered. T0 the extent ponions of Source Cede are
`gamed in a Cammisgiem fifing, the arnmmt of ennsecutive lines of Source
`Cede quoteé shafl not exceezci 45 firms peer quate. For pmfposes ef thia
`paragaph, commants shaii mt he censiciered :0 be Smtrcc Cede. In
`acidifimx, eithar (1) thz enfiire document Wifl be smmmé and twated as
`CONKDENTIAL SGURCE C0«DE--—~ATT(}RNEY’S EYES ONLY
`INFGRMATION; 93' (2) fhose gages nn (meted Source Conic will
`be sepmately stamped and tmateci M CONFIDENTIAL SOURCE
`CGDEW A"fTORNEY’S EYES QNLY INFORMATION. A}! copies are
`to be prinwd en watexmarked paper.
`
`With respect 1:9 briefs mat eerxtain Swarm Cede quotes, each P-n
`3.
`shaii redaci fmm the service eapy of their brief an exhibits containing zn
`cit-‘eel Scarce Code.
`
`The receiving party is pemaitted ta make one additional hard wpy
`4.
`fat each af its qualified Expats and/‘or Qualified Consultants who are
`SOURCE CODE QUALEFXED PERSGNSV, but not to exceed a total. of
`five (5) copies. AH copies are :9 be printed an watermarked, color paper
`nn pn by such Qualified Expert at Quaiified Conmimnt in a
`sacured, locked area as pmvideci $33,: the terms af this agreement.
`
`Electronic eognies af nn Ccrde Knn emiy be made to he izlcmcied
`5.
`0nn ciawments which, pursuant £0 n Cummissisnk rules, procedures and
`msdmfs), cannot be filed er served in hard copy fcmn and must be fiied nr
`gerved eiectronicaliy. Ont}; the wacassary arnoumt of eiectronic copies to
`efieettmte mach nn or @nn may be stared on any receiving y
`
`

`
`server, hard drive, or other eiectronic storage device at any given Pt8n
`After any such eiectronic filing or service, the receiving `pQn shah delete
`ali eiectronsie copies from air en party eieetronie storage devices.
`
`The supplier shall, on request, make a searchable electronic copy
`(6)
`of the Source Code available on a stand—alone computer during
`depositions of expert and 30(b)(6) witnesses who would otherwise be
`permitted access to such Source Code, and such depositions shall take
`place at a location to be determined by the supplying party. The receiving
`party shall make such request in the notice for deposition or in each topic
`in a 30(b)(6) deposition where applicable. The supplying party shall be
`required to make only one stand—alone computer available under this
`provisi.on. Accordingly, the receiving party shall not schedule concurrent
`depositions requiring the stand—alone computer. In addition, the receiving
`party bears the cost of all licenses for the search tools on such stand-alone
`computer, if any, which the supplying party shall promptly load on the
`stand-alone computer upon receipt from the receiving party.
`
`(xiii) Nothing Nn this Protective Order shall be construed to limit how a supplier
`may maintain material desigrated as CONFIDENTIAL SOURCE CODE——-
`AT'TORNEY’S EYES GNLY ENFORRLATION.
`
`for the receiving party _Kn custody of
`(xiv) Outside Litigation Counsel
`CONFIDENTIAL
`SGURCE
`CODE~mATTDRl‘~iEY’S
`EYES
`GNLY
`
`INFGRMATIQN shall maintain a Source, Code log containing the foiirowing
`infonnation:
`(1)
`the
`identity of each person granted
`act,-we
`to the
`n7Xn
`CGNFIDENTEAL
`SOURCE
`COI)E-ATTORNEY’iS
`ONLY
`
`Il‘H*"0RMATION; (2) the first date on which such access was granted; (3) the
`number of copies of code or technical files or software comments made by the
`receiving party; (4) for each given review day, the date and time access began;
`and (5) for each given review day, the date and time access ended. Outside
`Litigation Counsel for the receiving party will produce, upon request, each such
`Source Code log to the supplier within twenty (20) days of the final determination
`of the Investigation.
`
`(xv) Upon printing any such portion of Source Code, the receiving party shall
`log the location of the electronic file(s) that was/were printed such that the
`electronic file(s) may be readily located on the stand—alone computer, unless the
`location, in its entirety, of the electronic file(s) is included in the header or footer
`of the printed pages. Such logging may include, but is not limited to, complete
`filenames, directory paths, version numbers, and revision numbers. The receiving
`party shall provide this log to the supplier at the end of each review session. The
`receiving party's failure to adequately log the location of the file(s) it prints shall
`be at least one non—exclusive ground on which the supplier may object and
`properly refuse to produce the printed pages.
`
`11
`
`

`
`(xvi) Access to and review of the Source Code shall be strictly for the purpose
`of investigating the claims and defenses at issue in this Investigation. No person
`shall
`review or analyze any Source Code for purposes unrelated to this
`Investigation, nor may any person use any knowledge gained as a result of
`reviewing Source Code in this Investigation in any other pending or future
`dispute, proceeding, patent prosecution, patent reexamination, or litigation.
`
`(xvii) Upon 0.n termination of this investigation {including all appeals) or
`settlement, each recipient shall
`immediately destroy all printed pagm of the
`Source Code and any notes or other work product reifleeting Source Code and
`certify destruction thereof to the supplier promptly.
`
`(xviii) Only persons who have complied with Faragraph 4 of the Protective
`Qrder, subject to the procedures of this Parmaph 18 of the Protective Coder, may
`have access to the supplier’s Source Code. No employee or agent of n recipient
`may will be approved to view the suppiiefs Source Code (whether in electronic
`form or otherwise).
`
`
`
`
`‘ tr nn nn . The private parties agree that entering into this Protective
`
`
`
`19.
`Order Add ndurn is without prejudice to any partfs rights to propose, request or
`\n move for different provisions relating to Source Code production in the
`lnvesalgatiron or any other investigation, action or proceeding. Nothing herein
`shall be deemed a waiver of a party's right to object to the production of Source
`Code. Absent a subsequent and specific court or agency order,
`herein
`steal! obligate a party to breach any no.n—mrty license ameement relating to such
`Confidential Source Code. The parties n acknowledge that some or all of n
`Confidential Source Code may be owned by non-parties and outside a mrty‘s
`possession, custody or control. Naming herein shall be deemed :1 Waiver of any
`non~party‘s right to object to the production of Confidential Source Code or object
`to then of any such production.
`
`Notwithstanding the provisions of paragraphs 3, 4, and 5 of the Protective
`29.
`Order, absent the written consent of the supplier, any person who reviews or
`otherwise learns the substance of a third party’s or Respondent’s confidential
`business information or a third party’s or Respondent’s Source Code (together,
`“Protected Information”) shall not be involved in the prosecution of: (i) the
`patents asserted in this action; (ii) any continuations, continuations in part,
`reissues, or divisionals that derive in whole or in part from the patents asserted in
`this action; (iii) any patent assigned to the Complainant; (iv) any patent related to
`the subject matter of the patents—in—suit and assigned to a party or an entity
`affiliated with, owned by, or controlled by a party; or (V) any patents related to the
`subject matter of the patents—in—suit assigned to any entity with any degree of
`common ownership, any degree of common control, or any degree of common
`employees as FlashPoint at any point in time. Absent the written consent of the
`supplier, any person who reviews or otherwise learns the substance of Protected
`Information shall not use the Protected In