Case 6:22-cv-00031-ADA Document 97-1 Filed 02/21/23 Page 1 of 28
`Case 6:22-cv-00031-ADA Document 97-1 Filed 02/21/23 Page 1 of 28
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`EXHIBIT A
`EXHIBIT A
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`Case 6:22-cv-00031-ADA Document 97-1 Filed 02/21/23 Page 2 of 28
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`FLYPSI, INC. (D/B/A FLYP),
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`Plaintiff,
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`v.
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`GOOGLE LLC,
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`Defendant.
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`§
`§
`§
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`§
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`Case No. 6:22-CV-00031-ADA
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`AMENDED PROTECTIVE ORDER
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`WHEREAS, Plaintiff Flypsi, Inc. (“Flyp”) and Defendant Google LLC (“Google”), hereafter
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`referred to as “the Parties,” believe that certain information that is or will be encompassed by
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`discovery demands by the Parties involves the production or disclosure of trade secrets,
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`confidential business information, or other proprietary information;
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`WHEREAS, the Parties seek a protective order limiting disclosure thereof in accordance with
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`Federal Rule of Civil Procedure 26(c):
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`THEREFORE, it is hereby stipulated among the Parties and ORDERED that:
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`1.
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`Each Party may designate as confidential for protection under this Order, in whole or in
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`part, any document, information, or material that constitutes or includes, in whole or in
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`part, confidential or proprietary information or trade secrets of the Party or a Third Party
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`to whom the Party reasonably believes it owes an obligation of confidentiality with respect
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`to such document, information, or material (“Protected Material”). Protected Material shall
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`be designated by the Party producing it by affixing a legend or stamp on such document,
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`information, or material as follows: “CONFIDENTIAL.” The word “CONFIDENTIAL”
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`1
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`Case 6:22-cv-00031-ADA Document 97-1 Filed 02/21/23 Page 3 of 28
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`shall be placed clearly on each page of the Protected Material (except deposition and
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`hearing transcripts and natively produced documents) for which such protection is sought.
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`For deposition and hearing transcripts, the word “CONFIDENTIAL” shall be placed on
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`the cover page of the transcript (if not already present on the cover page of the transcript
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`when received from the court reporter) by each attorney receiving a copy of the transcript
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`after that attorney receives notice of the designation of some or all of that transcript as
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`“CONFIDENTIAL.”
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` For natively produced Protected Material,
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`the word
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`“CONFIDENTIAL” shall be placed in the filename of each such natively produced
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`document.
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`2.
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`Any document produced before issuance of this Order, including pursuant to the Court’s
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`Standing Order Governing Proceedings - Patent Cases, with the designation “Confidential”
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`shall receive the same treatment as if designated “CONFIDENTIAL” under this order and
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`any such documents produced with the designation “Confidential - Outside Attorneys’
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`Eyes Only” shall receive the same treatment as if designated “CONFIDENTIAL -
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`OUTSIDE ATTORNEYS’ EYES ONLY” under this Order, unless and until such
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`document is re-designated to have a different classification under this Order.
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`3.
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`Flyp asserts claims of patent infringement for claims of the same patents against Defendant
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`Dialpad, Inc. (“Dialpad”) in Flypsi, Inc. (d/b/a Flyp) v. Dialpad, Inc., Case No. 6:21-cv-
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`00642-ADA (W.D. Tex.) (the “Dialpad Case”). To the extent that Google produces
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`Protected Material under the terms of this Protective Order to Plaintiff, Plaintiff shall not
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`share that material with other parties, including in any litigations involving the same or
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`related patents, including but not limited to Dialpad in the Dialpad Case, absent express
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`written permission from Google or a court order. This Order does not confer any right for
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`2
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`Case 6:22-cv-00031-ADA Document 97-1 Filed 02/21/23 Page 4 of 28
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`Google to access the Protected Material of any other defendant in any other litigations
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`involving the same or related patents. Notwithstanding the provisions of this Protective
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`Order, Plaintiff shall not disclose any of Google’s Protected Material to any other
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`defendant in related or consolidated litigations through Court filings, oral argument in
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`Court, expert reports, deposition, discovery requests, discovery responses, or any other
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`means, without the express prior written consent of Google.
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`4.
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`With respect to documents, information, or material designated “CONFIDENTIAL,”
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`“CONFIDENTIAL - ATTORNEYS’ EYES ONLY,” “CONFIDENTIAL - OUTSIDE
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`ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL
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`- SOURCE CODE”
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`(“DESIGNATED MATERIAL”),1 subject to the provisions herein and unless otherwise
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`stated, this Order governs, without limitation: (a) all documents, electronically stored
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`information, and/or things as defined by the Federal Rules of Civil Procedure; (b) all
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`pretrial, hearing or deposition testimony, or documents marked as exhibits or for
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`identification in depositions and hearings; (c) pretrial pleadings, exhibits to pleadings and
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`other court filings; (d) affidavits; and (e) stipulations. All copies, reproductions, extracts,
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`digests, and complete or partial summaries prepared from any DESIGNATED
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`MATERIALS shall also be considered DESIGNATED MATERIAL and treated as such
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`under this Order.
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`5.
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`A designation of Protected Material (i.e., “CONFIDENTIAL,” “CONFIDENTIAL -
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`ATTORNEYS’ EYES ONLY,” “CONFIDENTIAL - OUTSIDE ATTORNEYS’ EYES
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`1 The term DESIGNATED MATERIAL is used throughout this Protective Order to refer to the
`class of materials designated as “CONFIDENTIAL,” “CONFIDENTIAL - ATTORNEYS’ EYES
`ONLY,” “CONFIDENTIAL - OUTSIDE ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL
`- SOURCE CODE,” individually and collectively.
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`3
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`Case 6:22-cv-00031-ADA Document 97-1 Filed 02/21/23 Page 5 of 28
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`ONLY,” or “CONFIDENTIAL - SOURCE CODE”) may be made at any time. Inadvertent
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`or unintentional production of documents, information, or material that has not been
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`designated as DESIGNATED MATERIAL shall not be deemed a waiver in whole or in
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`part of a claim for confidential treatment. Any party that inadvertently or unintentionally
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`produces Protected Material without designating it as DESIGNATED MATERIAL may
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`request destruction of that Protected Material by notifying the recipient(s), as soon as
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`reasonably possible after the producing Party becomes aware of the inadvertent or
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`unintentional disclosure, and providing replacement Protected Material that is properly
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`designated. The recipient(s) shall then destroy all copies of the inadvertently or
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`unintentionally produced Protected Materials and any documents, information, or material
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`derived from or based thereon.
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`6.
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`“CONFIDENTIAL” documents, information, and material may be disclosed only to the
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`following persons, except upon receipt of the prior written consent of the designating Party,
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`upon order of the Court, or as set forth in paragraph 18 herein:
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`(a)
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`(b)
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`(c)
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`(d)
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`outside counsel of record in this Action2 for the Parties;
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`employees of such counsel assigned to and reasonably necessary to assist such
`counsel in the litigation of this Action;
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`up to one in-house counsel for each of the Parties who is a member in good standing
`of at least one state bar and has responsibility for making decisions dealing directly
`with the litigation of this Action;
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`if a Party does not have in-house counsel, up to one officer level designated
`employee of each of the Parties who either has responsibility for making decisions
`dealing directly with the litigation in this Action or who is assisting outside
`counsel in preparation for proceedings in this Action. Before access is given, the
`designated employee shall complete the Undertaking attached as Appendix A
`hereto, which must be served upon the producing Party with a general description
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`2 This “Action” means Case No. 6:22-cv-00031.
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`Case 6:22-cv-00031-ADA Document 97-1 Filed 02/21/23 Page 6 of 28
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`(e)
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`of the designated employee's role in this Action at least seven (7) days before
`access to the Protected Material is to be given to that designated employee. The
`producing Party shall have that seven (7) day period to object to and notify the
`receiving Party in writing that it objects to disclosure of Protected Material to the
`designated employee. The Parties agree to promptly confer and use good faith to
`resolve any such objection. If a Party discloses Protected Material to the
`designated employee, the Party may not disclose Protected Material to a later-
`hired in-house counsel under paragraph 6(c);
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`outside consultants or experts3 (i.e., not existing employees or affiliates of a Party
`or an affiliate of a Party) retained for the purpose of this litigation, provided that:
`(1) such consultants or experts are not presently employed by the Parties or of an
`affiliate of a Party hereto for purposes other than this Action4; (2) before access is
`given, the consultant or expert has completed the Undertaking attached as
`Appendix A hereto and the same is served upon the producing Party with a current
`curriculum vitae of the consultant or expert, including a list of other cases in which
`the individual has provided a report or testified (at trial or deposition) and a list of
`companies that the individual has been employed by or provided consulting
`services pertaining to the field of the invention of the patent(s)-in-suit or the
`products accused of infringement within the last four years and a brief description
`of the subject matter of the consultancy or employment, at least ten (10) days before
`access to the Protected Material is to be given to that consultant or expert to object
`to and notify the receiving Party in writing that it objects to disclosure of Protected
`Material to the consultant or expert. The Parties agree to promptly confer and use
`good faith to resolve any such objection. If the Parties are unable to resolve any
`objection, the objecting Party may file a motion with the Court within fifteen (15)
`days of receipt of the notice, or within such other time as the Parties may agree,
`seeking a protective order with respect to the proposed disclosure. The objecting
`Party shall have the burden of proving the need for a protective order. No disclosure
`shall occur until all such objections are resolved by agreement or Court order5;
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`3 For any such person, the curriculum vitae shall identify his/her (i) current employer(s), (ii) each
`person or entity from whom s/he has received compensation or funding for work in his or her
`areas of expertise or to whom the s/he has provided professional services, including in
`connection with a litigation, at any time during the preceding five years; (iii) (by name and
`number of the case, filing date, and location of court) any litigation in connection with which the
`s/he has offered expert testimony, including through a declaration, report, or testimony at a
`deposition or trial, during the preceding five years. If such consultant or expert believes any of
`this information is subject to a confidentiality obligation to a third party, then the s/he should
`provide whatever information can be disclosed without violating any confidentiality agreements,
`and the Party seeking to disclose Protected Material to the consultant or expert shall be available
`to meet and confer with the designating Party regarding any such engagement.
`4 For avoidance of doubt, an independent expert or consultant retained (as opposed to employed)
`by a Party on another litigation would not be precluded under this provision.
`5 A party who has not previously objected to disclosure of Protected Material to an expert or
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`Case 6:22-cv-00031-ADA Document 97-1 Filed 02/21/23 Page 7 of 28
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`(f)
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`independent litigation support services, including persons working for or as court
`reporters, graphics or design services, jury or trial consulting services, and
`photocopy, document imaging, and database services retained by counsel and
`reasonably necessary to assist counsel with the litigation of this Action; and
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`(g)
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`the Court and its personnel.
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`7.
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`A Party shall designate documents, information, or material as “CONFIDENTIAL” only
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`upon a good faith belief that the documents, information, or material contains confidential
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`or proprietary information or trade secrets of the Party or a Third Party to whom the Party
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`reasonably believes it owes an obligation of confidentiality with respect to such documents,
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`information, or material.
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`8.
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`Documents, information, or material produced in this Action, including but not limited to
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`Protected Material designated as DESIGNATED MATERIAL, and the knowledge of the
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`existence and substance of such Protected Material (i) shall be used only for prosecuting,
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`defending, or attempting to settle this Action, (ii) shall not be used for any business
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`purpose, in connection with any other legal or administrative proceeding, including but not
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`limited to any proceeding at the U.S. Patent and Trademark Office (or any similar agency
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`of a foreign government), or directly or indirectly for any other purpose whatsoever, and
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`(iii) shall not be disclosed to any person who is not entitled to receive such Protected
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`Material as herein provided. All produced Protected Material shall be carefully maintained
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`so as to preclude access by persons who are not entitled to receive such Protected Material,
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`and any person or entity who obtains access to DESIGNATED MATERIAL or the contents
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`whose objection has been resolved with respect to previously produced Protected Material shall
`not be precluded from raising an objection to an expert at a later time with respect to Protected
`Material that is produced after the time for objecting to such expert has expired or if new
`information about that expert is disclosed or discovered.
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`Case 6:22-cv-00031-ADA Document 97-1 Filed 02/21/23 Page 8 of 28
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`thereof pursuant to this Order shall not make any copies, duplicates, extracts, summaries,
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`or descriptions of such DESIGNATED MATERIAL or any portion thereof except as may
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`be reasonably necessary in the litigation of this Action. Any such copies, duplicates,
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`extracts, summaries, or descriptions shall be classified DESIGNATED MATERIALS and
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`subject to all of the terms and conditions of this Order.
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`9.
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`To the extent a producing Party believes that certain Protected Material qualifying to be
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`designated CONFIDENTIAL is so sensitive that its dissemination deserves even further
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`limitation, the producing Party may designate such Protected Material “CONFIDENTIAL
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`- ATTORNEYS’ EYES ONLY,” or to the extent such Protected Material includes or
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`substantially relates to computer source code and/or live data (that is, data as it exists
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`residing in a database or databases) (“Source Code Material”), the producing Party may
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`designate such Protected Material as “CONFIDENTIAL - SOURCE CODE.”
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`10.
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`For Protected Material designated CONFIDENTIAL - ATTORNEYS’ EYES ONLY,
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`access to, and disclosure of, such Protected Material shall be limited to individuals listed
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`in paragraphs 6(a–c) and (e–g); provided, however, that access by in-house counsel
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`pursuant to paragraph 6(c) be limited to in-house counsel who exercise no competitive
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`decision-making authority on behalf of the client.
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`11.
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`For Protected Material designated CONFIDENTIAL - OUTSIDE ATTORNEYS’ EYES
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`ONLY, access to, and disclosure of, such Protected Material shall be limited to individuals
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`listed in paragraphs 6(a–b) and (e–g); provided, however, that the designating Party shall
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`accommodate reasonable requests to provide summary information to in-house counsel
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`designated pursuant to paragraph 6(c) who exercise no competitive decision-making
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`authority on behalf of the client and reasonably require access to such information.
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`Case 6:22-cv-00031-ADA Document 97-1 Filed 02/21/23 Page 9 of 28
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`12.
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`For Protected Material designated CONFIDENTIAL - SOURCE CODE, the following
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`additional restrictions apply:
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`(a)
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`(b)
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`(c)
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`(d)
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`Access to a Party’s Source Code Material shall be provided only on “stand-alone”
`computer(s) (that is, the computer may not be linked to any network, including a
`local area network (“LAN”), an intranet or the Internet). The stand-alone
`computer(s) may be connected to a printer. The stand-alone computer(s) may only
`be located within the continental United States at the offices of the producing
`Party’s outside counsel or its vendors. The stand-alone computer(s) shall have disk
`encryption and be password protected. Use or possession of any input/output
`device (e.g., USB memory stick, mobile phone or tablet, camera or any camera-
`enabled device, CD, floppy disk, portable hard drive, laptop, or any device that can
`access the Internet or any other network or external system, etc.) is prohibited while
`accessing the computer containing the source code. All persons entering the locked
`room containing the stand-alone computer(s) must agree to submit to reasonable
`security measures to ensure they are not carrying any prohibited items before they
`will be given access to the stand-alone computer(s). The producing Party may
`periodically “check in” on the activities of the receiving Party’s representatives
`during any stand-alone computer review and may visually monitor the activities of
`the receiving Party’s representatives from outside the room in which the stand-
`alone computer(s) is located, but only to ensure that no unauthorized electronic
`records of the Source Code Material and no information concerning the Source
`Code Material are being created or transmitted in any way. The producing Party
`may not record (visually, audibly, or by other means) the activities of the receiving
`Party’s representatives.
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`The receiving Party shall make reasonable efforts to restrict its requests for such
`access to the stand-alone computer(s) to normal business hours, which for purposes
`of this paragraph shall be 8:00 a.m. through 6:00 p.m. However, upon reasonable
`notice from the receiving Party, the producing Party shall make reasonable efforts
`to accommodate the receiving Party’s request for access to the stand-alone
`computer(s) outside of normal business hours. The Parties agree to cooperate in
`good faith such that maintaining the producing Party’s Source Code Material at the
`offices of its outside counsel or its vendors shall not unreasonably hinder the
`receiving Party’s ability to efficiently and effectively conduct the prosecution or
`defense of this Action.
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`The producing Party shall provide the receiving Party with information explaining
`how to start, log on to, and operate the stand-alone computer(s) in order to access
`the produced Source Code Material on the stand-alone computer(s).
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`The producing Party will produce Source Code Material in computer searchable
`format on the stand-alone computer(s) as described above. The stand-alone
`computer shall be provisioned with software sufficient to review and search the
`source code on the stand-alone computer. Upon the receiving Party’s request, other
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`Case 6:22-cv-00031-ADA Document 97-1 Filed 02/21/23 Page 10 of 28
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`(e)
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`(f)
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`(g)
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`commercially available software tools for viewing and searching source code shall
`be installed on the computer, provided that (a) the receiving Party possesses an
`appropriate license to such software tools; (b) the producing Party approves such
`software tools (which approval shall not be unreasonably withheld); and (c) such
`software tools do not include a compiler. Such request and software shall be
`provided a at least five (5) business days in advance of the date upon which the
`receiving Party wishes to have the additional software tools available for use on
`the computer.
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`Access to Source Code Material shall be limited to outside counsel and up to four
`(4) outside consultants or experts6 (i.e., not existing employees or affiliates of a
`Party or an affiliate of a Party or competitor identified by the producing Party with
`reasonable specificity) retained for the purpose of this litigation and approved to
`access such Protected Materials pursuant to paragraph 6(e) above. A receiving
`Party may include excerpts of Source Code Material in an exhibit to a pleading,
`expert report, or deposition transcript (collectively, “Source Code Exhibits”),
`provided that the Source Code Exhibits are appropriately marked under this Order,
`restricted to those who are entitled to have access to them as specified herein, and,
`if filed with the Court, filed under seal in accordance with the Court’s rules,
`procedures, and orders.
`To the extent portions of Source Code Material are quoted in a Source Code
`Exhibit, either (1) the entire Source Code Exhibit will be stamped and treated as
`CONFIDENTIAL - SOURCE CODE or (2) those pages containing quoted Source
`Code Material will be separately stamped and treated as CONFIDENTIAL -
`SOURCE CODE.
`Except as set forth in this paragraph, no electronic copies or images of Source Code
`Material shall be made without prior written consent of the producing Party. The
`receiving Party may create an electronic copy or image of limited excerpts of
`Source Code Material only to the extent necessary to create Source Code Exhibits
`or any drafts of these documents7. The receiving Party shall only include such
`excerpts as are reasonably necessary for the purposes for which such part of the
`Source Code Material is used. Images or copies of Source Code Material shall not
`be included in correspondence between the parties (references to production
`numbers shall be used instead) and shall be omitted from pleadings and other
`papers except to the extent permitted herein. The receiving Party may create an
`electronic image of a selected portion of the Source Code Material only when the
`electronic file containing such image has been encrypted using commercially
`reasonable encryption
`software
`including password protection.
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`communication and/or disclosure of electronic files containing any portion of
`Source Code Material shall at all times be limited to individuals who are authorized
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`6 For the purposes of this paragraph, an outside consultant or expert does not include the outside
`consultant’s or expert’s direct reports and other support personnel.
`7 Drafts shall only include those excerpts the receiving Party reasonably believes will be included
`in the final version.
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`Case 6:22-cv-00031-ADA Document 97-1 Filed 02/21/23 Page 11 of 28
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`to see Source Code Material under the provisions of this Protective Order.
`Additionally, all electronic copies must be labeled "CONFIDENTIAL - SOURCE
`CODE." If Source Code Documents are filed with the Court, they must be filed
`under seal in accordance with the Court’s rules, procedures and orders.
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`(h) No person shall copy, e-mail, transmit, upload, download, print, photograph or
`otherwise duplicate any portion of the designated “CONFIDENTIAL - SOURCE
`CODE” material, except that the receiving Party may request paper copies
`(“Source Code Printouts”) of limited portions of the Source Code Material, but
`only if and to the extent reasonably necessary for the preparation of court filings,
`pleadings, expert reports, or other papers, or for deposition or trial. In no event may
`the receiving Party print more than 25 consecutive pages, or an aggregate total of
`more than 500 pages, of source code during the duration of the case without prior
`written approval by the producing Party. The receiving Party may make reasonable
`requests to exceed this limit for good cause if needed and, if such a request is
`denied by the producing Party, the receiving Party may raise its request to exceed
`this limit for good cause with the Court after a meet and confer between the Parties.
`The receiving Party shall not request paper copies for the purposes of reviewing
`the source code other than electronically as set forth in paragraph (a) in the first
`instance. Within 5 business days or such additional time as necessary due to
`volume requested, the producing Party will provide the requested material on
`watermarked or colored paper bearing Bates numbers and
`the
`legend
`“CONFIDENTIAL - SOURCE CODE" unless objected to as discussed below. At
`the inspecting Party’s request, up to two additional sets (or subsets) of printed
`source code may be requested and provided by the producing Party in a timely
`fashion. Even if within the limits described, the producing Party may challenge the
`amount of source code requested in hard copy form or whether the source code
`requested in hard copy form is reasonably necessary to any case preparation
`activity pursuant to the dispute resolution procedure and timeframes set forth in
`Paragraph 22 whereby the producing Party is the “requesting Party” and the
`receiving Party is the “designating Party” for purposes of dispute resolution.
`Contested Source Code Printouts do not need to be produced to the receiving Party
`until the matter is resolved by the Court.
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`(i)
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`If the receiving Party’s outside counsel, consultants, or experts obtain Source Code
`Printouts, the receiving Party shall ensure that such outside counsel, consultants,
`or experts keep the Source Code Printouts under their direct control in a secured
`locked area in the offices of such outside counsel, consultants, or experts. The
`receiving Party may also temporarily keep the Source Code Printouts at: (i) the
`Court for any proceedings(s) relating to the Source Code Material, for the dates
`associated with the proceeding(s); (ii) the sites where any deposition(s) relating to
`the Source Code Material are taken, for the dates associated with the deposition(s);
`and (iii) any intermediate location reasonably necessary to transport the Source
`Code Printouts to a Court proceeding or deposition, provided that the printouts or
`photocopies are kept in a secure manner that ensures access is limited to the
`persons authorized under this Order.
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`Case 6:22-cv-00031-ADA Document 97-1 Filed 02/21/23 Page 12 of 28
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`(j)
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`(k)
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`A producing Party’s Source Code Material (including, without limitation, Source
`Code Exhibits and Source Code Printouts) may only be transported by the
`receiving Party at the direction of a person authorized under paragraph 12(e) above
`to another person authorized under paragraph 12(e) above on paper (a) via hand
`carry or b) via Federal Express, or other similarly reliable courier, within a portable
`security safe of the producing Party’s choosing, with tracking information
`provided to the producing Party immediately upon transfer of the producing
`Party’s Source Code Material to such courier. Prior to the transport of the
`producing Party’s Source Code Material (including, without limitation, Source
`Code Exhibits and Source Code Printouts) via Federal Express, or other similarly
`reliable courier, the receiving Party shall provide notice of such intent (including
`the intended courier, class of shipping, and shipping origination and destination)
`to the producing Party. The producing Party shall have five (5) business days after
`receipt of such notice to either approve or reject such method of transport. If the
`producing Party approves such method of transport, the producing Party shall
`inform the receiving Party of the approved portable security safe to be used for
`such transport. If the producing Party rejects such method of transport, the
`producing Party shall arrange, and bear the hand carry cost of, its own method of
`transport. Source Code Material (including, without limitation, Source Code
`Exhibits and Source Code Printouts) may not be transported or transmitted
`electronically over a network of any kind, including a LAN, an intranet, or the
`Internet. Source Code Exhibits may only be transported electronically (subject to
`the encryption requirements of 12(g) above) as is reasonably necessary for (a) the
`preparation of such Source Code Exhibits, (b) the filing of any Source Code
`Exhibits with the Court, or (c) serving such Source Code Exhibits on another Party.
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`The receiving Party’s outside counsel and/or expert shall be entitled to take notes
`relating to the source code. In such notes, the receiving Party’s outside counsel
`and/or expert may quote or refer to (i) directory path information and filenames
`within the source code, or (ii) line numbers, but may not copy any portion of the
`source code into the notes. 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
`herein. Further, no other written or electronic record of the source code is
`permitted except as otherwise provided herein. No notes shall be made or stored
`on the inspection computer, or left behind at the site where the inspection computer
`is made available, and any such notes shall be deleted or destroyed by the
`producing Party, without reviewing the substance of the notes, upon discovery.
`Notwithstanding the foregoing, any such notes shall be stamped and treated as
`“CONFIDENTIAL - SOURCE CODE.” The log of such notes need not be
`produced to any other party absent Court Order (e.g., potentially in connection with
`a Protective Order violation motion).
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`(l)
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`A list of names of persons who will review Source Code Material on the stand-
`alone computer(s) will be provided to the producing Party in conjunction with any
`written (including email) notice requesting inspection. Prior to the first inspection
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`of any Source Code Material on the stand-alone computer(s), the receiving Party
`shall provide five (5) business days’ notice to schedule the initial inspection with
`the producing Party. The receiving Party shall provide three (3) business days’
`notice in advance of scheduling any additional inspections. Such notice shall
`include the names and titles for every individual from the receiving Party who will
`attend the inspection. The producing Party may maintain a daily log of the names
`of persons who enter the locked room to view the source code and when they enter
`and depart;
`
`(m)
`
`(n)
`
`The receiving Party’s outside counsel shall maintain a log of all copies of the
`Source Code Printouts (received from a producing Party) that are delivered by the
`receiving Party to any person and a log of any electronic images of Source Code
`Material. The log shall include the names of the recipients and reviewers of copies
`and locations where the copies are stored. Upon request by the producing Party,
`the receiving Party shall provide reasonable assurances and/or descriptions of the
`security measures employed by the receiving Party and/or person that receives a
`copy of any portion of the source code; and
`
`All copies of any portion of the Source Code Printouts in whatever form shall be
`securely destroyed if they are no longer in use. Copies of Source Code Printouts
`that are marked as deposition exhibits shall not be provided to the Court Reporter
`or attached to deposition transcripts; rather, the deposition record will identify the
`exhibit by its production numbers.
`
`13.
`
`Absent written consent from the designating Party, any person associated or affiliated with
`
`Flyp and permitted to receive the other Party’s Protected Material that is designated
`
`CONFIDENTIAL - ATTORNEYS’ EYES ONLY, CONFIDENTIAL - OUTSIDE
`
`ATTORNEYS’ EYES ONLY, and/or CONFIDENTIAL - SOURCE CODE (collectively
`
`“HIGHLY SENSITIVE MATERIAL”), who obtains, receives, has access to, or otherwise
`
`learns, in whole or in part, said designating Party’s HIGHLY SENSITIVE MATERIAL
`
`under this Order shall not prepare, prosecute, supervise, or assist in the preparation or
`
`prosecution of any patent application pertaining to (a) setting up and connecting telephone
`
`calls, and delivering information related to such telephone calls, (b) any products, services,
`
`or systems accused of infringement in this Action, or (c) the patents asserted in this Action
`
`and any patent or application claiming priority to or otherwise related to the patents
`
`12
`
`

`

`Case 6:22-cv-00031-ADA Document 97-1 Filed 02/21/23 Page 14 of 28
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`asserted in this Action (collectively the “Field of Invention”) during the pendency of this
`
`Action and for three years after its conclusion, including any appeals. For purposes of this
`
`paragraph, “prosecution” includes any activity related to (i) the preparation or prosecution
`
`(for any person or entity) of patent applications, including among others reexamination and
`
`reissue applications or (ii) directly or indirectly participating, drafting, amending, advising,
`
`or otherwise affecting the scope or maintenance of patent claims.8 To ensure compliance
`
`with the purpose of this provision, each Party shall create an “Ethical Wall” between