Ixi Mobile (R&D) Ltd. et al v. Apple, Inc.

Northern District of California, cand-4:2015-cv-03755

AGREED PROTECTIVE ORDER REGARDING THE DISCLOSURE AND USE OF DISCOVERY MATERIALS.regarding procedures to be followed that shall govern the handling of confidential material. (Signed by Judge Richard J. Sullivan on 4/14/2015)

Interested in this case?

Current View

Full Text

Case 4:15-CV-03755-HSG Document 46 Filed 04/14/15 Page 1 of 38 USDS SDNY DOCUMENT ELETTRONICALLY FL? UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK IXI MOBILE (R&D), LTD., et al., SATE NILED: 4/5 Plaintiffs, No. 14-cv-4355 (RJS) - V- SAMSUNG ELECTRONICS CO., et al., Defendants. IXI MOBILE (R&D), LTD., et al., Plaintiffs, No. 14-cv-4428 (RJS) - V - BLACKBERRY, LTD., et al., Defendants. IXI MOBILE (R&D), LTD., et al., Plaintiffs, No. 14-cv-7954 (RUS) - V- APPLE INC., Agreed Protective Order Regarding the Disclosure and Use of Discovery Materials Defendant. Plaintiffs IXI Mobile (R&D) Ltd. and IXI IP, LLC (collectively, the "Plaintiffs") and Defendants Blackberry Limited and Blackberry Corporation (collectively "Blackberry'); Samsung Electronics Co. Ltd., Samsung Electronics America, Inc., and Samsung Telecommunications America, LLC (collectively "Samsung"); and Apple Inc. ("Apple") AGREED PROTECTIVE ORDER – PAGE 1 117749978 10 Case 4:15-CV-03755-HSG Document 46 Filed 04/14/15 Page 2 of 38 (individually a "Defendant," collectively "Defendants") anticipate that documents, testimony, or information containing or reflecting confidential, proprietary, trade secret, and/or commercially sensitive information are likely to be disclosed or produced during the course of discovery, initial disclosures, and supplemental disclosures in these cases and request that the Court enter this Order setting forth the conditions for treating, obtaining, and using such information. Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the Court finds good cause for the following Agreed Protective Order Regarding the Disclosure and Use of Discovery Materials ("Order" or "Protective Order"). PURPOSES AND LIMITATIONS (a) Protected Material designated under the terms of this Protective Order shall be used by a Receiving Party solely for these cases, and shall not be used directly or indirectly for any other purpose whatsoever. (b) To the extent that any one of Defendants in this litigation provides Protected Material under the terms of this Protective Order to Plaintiffs, Plaintiffs shall not share that material with the other Defendants in this litigation, absent express written permission from the producing Defendant. This Order does not confer any right to any one Defendant to access the Protected Material of any other Defendant. (c) The Parties acknowledge that this Order does not confer blanket protections on all disclosures during discovery, or in the course of making initial or supplemental disclosures under Rule 26(a). Designations under this Order shall be made with care and shall not be made absent a good faith belief that the designated material satisfies the criteria set forth below. If it comes to a Producing Party's attention that designated material does not qualify for AGREED PROTECTIVE ORDER - PAGE 2 117749978_10 Case 4:15-CV-03755-HSG Document 46 Filed 04/14/15 Page 11 of 38 (a) A Designating Party may designate Discovery Material as "CONFIDENTIAL" if it contains or reflects confidential, proprietary, and/or commercially sensitive information. (b) Unless otherwise ordered by the Court, Discovery Material designated as "CONFIDENTIAL" may be disclosed only to the following: (i) The Receiving Party's Outside Counsel, such counsel's immediate paralegals and staff, and any copying or clerical litigation support services working at the direction of such counsel, paralegals, and staff; (ii) Not more than three (3) representatives of the Receiving Party who are officers or employees of the Receiving Party, who may be, but need not be, in-house counsel for the Receiving Party, as well as their immediate paralegals and staff, to whom disclosure is reasonably necessary for these cases, provided that: (a) each such person has agreed to be bound by the provisions of the Protective Order by signing a copy of Exhibit A; and (b) no unresolved objections to such disclosure exist after proper notice has been given to all Parties as set forth in Paragraph 12 below; (iii) Any outside expert or consultant retained by the Receiving Party to assist in this action, provided that disclosure is only to the extent necessary to perform such work; and provided that: (a) such expert or consultant has agreed to be bound by the provisions of the Protective Order by signing a copy of Exhibit A; (b) such expert or consultant is not a current officer, director, or employee of a Party or of a competitor of a Party, nor anticipated at the time of retention to become an officer, director or employee of a Party or of a competitor of a Party; (c) such expert or consultant accesses the materials in the United States only, and does not transport them to or access them from any foreign jurisdiction; and (d) no unresolved objections AGREED PROTECTIVE ORDER - PAGE 11 117749978_10 8 to such disclosure exist after proper notice has been given to all Parties as set forth in Paragraph 12 below. Without the express prior written consent of the Defendant that produced the Protected Material, no expert or consultant retained by a Defendant in this matter shall have access to "CONFIDENTIAL – ATTORNEYS' EYES ONLY" Discovery Material produced by another Defendant in this matter; (iv) Court reporters, stenographers and videographers retained to record testimony taken in this action; (v) The Court, jury, and court personnel; (vi) Document processing and hosting vendors, graphics, translation, design, and/or trial consulting personnel, having first agreed to be bound by the provisions of the Protective Order by signing a copy of Exhibit A; (vii) Mock jurors who have signed an undertaking or agreement agreeing not to publicly disclose Protected Material and to keep any information concerning Protected Material confidential; (viii) A deponent or witness at a trial or hearing who authored, received, or saw a document or thing designated "Confidential" or who is otherwise familiar with such documents or things; (ix) Any mediator who is assigned to hear this matter, and his or her staff, subject to their agreement to maintain confidentiality to the same degree as required by this Protective Order; and (x) Any other person with the prior written consent of the Producing Party or by Order of this Court. AGREED PROTECTIVE ORDER - PAGE 12 117749978_10 Case 4:15-CV-03755-HSG Document 46 Filed 04/14/15 Page 13 of 38 DISCOVERY MATERIAL DESIGNATED AS "CONFIDENTIAL - ATTORNEYS' EYES ONLY" (a) A Designating Party may designate Discovery Material as "CONFIDENTIAL – ATTORNEYS' EYES ONLY" if it contains or reflects information that is extremely confidential and/or sensitive in nature and the Designating Party reasonably believes that the disclosure of such Discovery Material is likely to cause economic harm or significant competitive disadvantage to the Designating Party. The Parties agree that the following information, if non-public, shall be presumed to merit the "CONFIDENTIAL – ATTORNEYS' EYES ONLY" designation: trade secrets, pricing information, financial data, sales information, sales or marketing forecasts or plans, business plans, sales or marketing strategy, product development information, engineering documents, testing documents, employee information, and other non-public information of similar competitive and business sensitivity. (b) Unless otherwise ordered by the Court, Discovery Material designated as "CONFIDENTIAL - ATTORNEYS' EYES ONLY" may be disclosed only to: (i) The Receiving Party's Outside Counsel, provided that such Outside Counsel is not involved in competitive decision-making, as defined by U.S. Steel v. United States, 730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984), on behalf of a Party or a competitor of a Party, and such Outside Counsel's immediate paralegals and staff, and any copying or clerical litigation support services working at the direction of such counsel, paralegals, and staff; (ii) Any outside expert or consultant retained by the Receiving Party to assist in this action, provided that disclosure is only to the extent necessary to perform such work; and provided that: (a) such expert or consultant has agreed to be bound by the provisions of the Protective Order by signing a copy of Exhibit A; (b) such expert or consultant is not a current officer, director, or employee of a Party or of a competitor of a Party, nor anticipated at AGREED PROTECTIVE ORDER - PAGE 13 117749978_10 8 the time of retention to become an officer, director, or employee of a Party or of a competitor of a Party; (c) such expert or consultant is not involved in competitive decision-making, as defined by U.S. Steel v. United States, 730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984), on behalf of a Party or a competitor of a Party; (d) such expert or consultant accesses the materials in the United States only, and does not transport them to or access them from any foreign jurisdiction; and (e) no unresolved objections to such disclosure exist after proper notice has been given to all Parties as set forth in Paragraph 12 below. Without the express prior written consent of the Defendant that produced the Protected Material, no expert or consultant retained by a Defendant in this matter shall have access to "CONFIDENTIAL – OUTSIDE ATTORNEYS' EYES ONLY" Discovery Material produced by another Defendant in this matter; (iii) Court reporters, stenographers and videographers retained to record testimony taken in this action; (iv) The Court, jury, and court personnel; (v) Document processing and hosting vendors, graphics, translation, design, and/or trial consulting personnel, having first agreed to be bound by the provisions of the Protective Order by signing a copy of Exhibit A; (vi) A deponent or witness at a trial or hearing who authored, received, or otherwise saw a document or thing designated "Confidential – Outside Attorneys' Eyes Only" or who is otherwise familiar with such documents or things; (vii) Any mediator who is assigned to hear this matter, and his or her staff, subject to their agreement to maintain confidentiality to the same degree as required by this Protective Order; and AGREED PROTECTIVE ORDER - PAGE 14 117749978 10 Case 4:15-CV-03755-HSG Document 46 Filed 04/14/15 Page 15 of 38 (viii) Any other person with the prior written consent of the Designating Party or by Order of this Court. 10. DISCOVERY MATERIAL DESIGNATED AS "CONFIDENTIAL - OUTSIDE ATTORNEYS' EYES ONLY - SOURCE CODE" (a) To the extent production of Source Code becomes necessary to the prosecution or defense of the case, a Producing Party may designate Source Code as "CONFIDENTIAL – OUTSIDE ATTORNEYS' EYES ONLY - SOURCE CODE" if it comprises or includes confidential, proprietary, and/or trade secret Source Code. (b) Nothing in this Order shall be construed as a representation or admission that Source Code is properly discoverable in this action, or to obligate any Party to produce any Source Code. (c) Unless otherwise ordered by the Court, Discovery Material designated as "CONFIDENTIAL – OUTSIDE ATTORNEYS' EYES ONLY - SOURCE CODE" shall be subject to the provisions set forth in Paragraph 11 below, and may be disclosed, subject to Paragraph 11 below, solely to: (i) The Receiving Party's Outside Counsel, provided that such Outside Counsel is not involved in competitive decision-making, as defined by U.S. Steel v. United States, 730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984), on behalf of a Party or a competitor of a Party, and such Outside Counsel's immediate paralegals and staff, and any copying or clerical litigation support services working at the direction of such counsel, paralegals, and staff; (ii) Any outside expert or consultant retained by the Receiving Party to assist in this action, provided that disclosure is only to the extent necessary to perform such work; and provided that: (a) such expert or consultant has agreed to be bound by the provisions of the Protective Order by signing a copy of Exhibit A; (b) such expert or consultant is not a AGREED PROTECTIVE ORDER - PAGE 15 117749978_10 Case 4:15-CV-03755-HSG Document 46 Filed 04/14/15 Page 16 of 38 current officer, director, or employee of a Party or of a competitor of a Party, nor anticipated at the time of retention to become an officer, director, or employee of a Party or of a competitor of a Party; (c) such expert or consultant is not involved in competitive decision-making, as defined by U.S. Steel v. United States, 730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984), on behalf of a Party or a competitor of a Party; and (d) no unresolved objections to such disclosure exist after proper notice has been given to all Parties as set forth in Paragraph 12 below. Without the express prior written consent of the Defendant that produced the Protected Material, no expert or consultant retained by a Defendant in this matter shall have access to "CONFIDENTIAL – OUTSIDE ATTORNEYS' EYES ONLY - SOURCE CODE" Discovery Material produced by another Defendant in this matter; (iii) Court reporters, stenographers and videographers retained to record testimony taken in this action; (iv) The Court, jury, and court personnel; (v) Any mediator who is assigned to hear this matter, and his or her staff, subject to their agreement to maintain confidentiality to the same degree as required by this Protective Order; and (vi) Any other person with the prior written consent of the Producing Party or by order of this Court. 11. DISCLOSURE AND REVIEW OF SOURCE CODE (a) Any Source Code that is produced by Plaintiffs shall be made available for inspection in electronic format at the New York, NY office of its Outside Counsel, the Philadelphia, PA office of its Outside Counsel, or any other location mutually agreed by the Parties. Any Source Code that is produced by Blackberry will be made available for inspection AGREED PROTECTIVE ORDER - PAGE 16 117749978_10 8 at the Dallas, TX office of its Outside Counsel, the New York, NY office of its Outside Counsel, or any other location mutually agreed by the Parties. Any Source Code that is produced by Samsung will be made available for inspection at the Chicago, IL office of its Outside Counsel, the New York, NY office of its Outside Counsel, or any other location mutually agreed by the Parties. Any Source Code that is produced by Apple will be made available for inspection at the Palo Alto, CA office of its Outside Counsel, the New York, NY office of its Outside Counsel, or any other location mutually agreed by the Parties. The Confidential Source Code Computer will be made available for inspection between the hours of 9:00 a.m. to 7:00 p.m. local time, on business days (i.e., weekdays that are not Federal holidays), although the Parties agree to be reasonable in accommodating reasonable requests to conduct inspections at other times; (b) Prior to the first inspection of any requested piece of Source Code, the requesting party shall provide twenty-one (21) days' notice of the Source Code that it wishes to inspect. The requesting party shall provide seven (7) days' notice prior to any additional inspections of the same Source Code, although the parties will be reasonable in accommodating requests of less than seven (7) days; (c) Source Code that is designated "CONFIDENTIAL – OUTSIDE ATTORNEYS' EYES ONLY - SOURCE CODE" shall be produced for inspection and review subject to the following provisions, unless otherwise agreed by the Producing Party: (i) All Source Code shall be made available by the Producing Party to the Receiving Party's outside counsel and/or experts in a Source Code Review Room (the "Source Code Review Room"), on a secured stand-alone computer (running a reasonably current operating system and consistent in specification with the computers generally used by the Producing Party's developers), without Internet access or network access to other computers and AGREED PROTECTIVE ORDER – PAGE 17 117749978 10 8 on which all access ports have been disabled (except for one printer port), as necessary and appropriate to prevent and protect against any unauthorized copying, transmission, removal, or other transfer of any Source Code outside or away from the computer on which the Source Code is provided for inspection (the "Confidential Source Code Computer"). The Parties agree that if, after an initial review of Source Code, a Receiving Party reasonably determines that it needs access to two Confidential Source Code Computers in order to complete its review in a timely manner, then the Producing Party will make reasonable efforts to accommodate such a request. Except as otherwise authorized by the Producing Party, no more than a total of seven (7) individuals identified by the Receiving Party shall have access to the Source Code Review Room in which the Producing Party produces its Source Code (and to any printed portions of the source code). The Producing Party shall install tools that are sufficient for viewing and searching the Source Code produced, on the platform produced, if such tools exist and are presently used in the ordinary course of the Producing Party's business. The Receiving Party's outside counsel and/or experts may request that commercially available software tools for viewing and searching Source Code be installed on the secured computer, provided, however, that (a) the Receiving Party possesses an appropriate license to such software tools; (b) the Producing Party approves such software tools; and (c) such other software tools are reasonably necessary for the Receiving Party to perform its review of the Source Code consistent with all of the protections herein. The Receiving Party must provide the Producing Party with the CD or DVD containing such licensed software tool(s) at least fourteen (14) days in advance of the date upon which the Receiving Party wishes to have the additional software tools available for use on the Confidential Source Code Computer. Specific tools may include but are not limited to: Visual Slick Edit, Source- Navigator, or other similar programs. The Receiving Party shall not at any time use any AGREED PROTECTIVE ORDER - PAGE 18 117749978 10 8 compilers, interpreters or simulators in connection with the Producing Party's Source Code. Notwithstanding the foregoing, nothing in this subparagraph 11(c)(i) shall in any way limit the Producing Party's right to deny the Receiving Party's request to have software tools installed on the secured computer. (ii) Other than the Confidential Source Code Computer and printer provided by the Producing Party, no electronic devices, including but not limited to laptops, floppy drives, zip drives or other hardware, shall be permitted in the Source Code Review Room. Nor shall any cellular telephones, personal digital assistants, Blackberries, cameras, voice recorders, Dictaphones, telephone jacks, or other devices be permitted inside the Source Code Review Room. No non-electronic devices capable of similar functionality shall be permitted in the Source Code Review Room. (iii) The Receiving Party's outside counsel and/or experts (whether testifying or non-testifying) shall be entitled to take notes relating to the Source Code but may not copy the Source Code into the notes and may not take such notes electronically on the Confidential Source Code Computer itself or any other computer. 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. (iv) The Producing Party may visually monitor the activities of the Receiving Party's outside counsel and/or experts during any Source Code review, but only to ensure that no unauthorized records of the Source Code and no information concerning the Source Code are being created or transmitted in any way. AGREED PROTECTIVE ORDER - PAGE 19 117749978_10 Case 4:15-cv-03755-HSG Document 46 Filed 04/14/15 Page 20 of 38 (v) The Producing Party shall make available in the Source Code Review Room a laser printer with commercially reasonable printing speeds to print copies of the Source Code on watermarked pre-Bates numbered paper, which shall be provided by the Producing Party. The Receiving Party may print limited portions of the Source Code only when reasonably necessary to prepare court filings or pleadings, expert reports, and trial exhibits, and shall print only such portions as are relevant to the claims and defenses in the case and are reasonably necessary for such purpose. Any printed portion that consists of more than twelve (12) pages of a continuous block of Source Code shall be presumed to be excessive and not done for a permitted purpose, and the burden shall be on the Receiving Party to demonstrate the need for such a printed copy. If the Receiving Party prints out more than 50 pages total, the printing shall be presumed to be excessive and not done for a permitted purpose, and the burden shall be on the Receiving Party to demonstrate the need for the printed pages. The Receiving Party shall not print Source Code in order to review blocks of Source Code elsewhere in the first instance, i.e., as an alternative to reviewing that Source Code electronically on the Confidential Source Code Computer, as the Parties acknowledge and agree that the purpose of the protections herein would be frustrated by printing portions of Source Code for review and analysis elsewhere. If the Producing Party objects that the printed portions are not done for a permitted purpose, or that they are excessive despite not exceeding twelve (12) pages of a continuous block of Source Code or exceeding 50 pages total of Source Code, the Producing Party shall make such objection known to the Receiving Party within ten (10) days. If, after meeting and conferring, the Producing Party and the Receiving Party cannot resolve the objection, the Receiving Party shall be entitled to seek the Court's resolution of whether the printed Source Code in question is narrowly tailored and was printed for a permitted purpose. For Source Code printouts not AGREED PROTECTIVE ORDER - PAGE 20 117749978_10 Case 4:15-CV-03755-HSG Document 46 Filed 04/14/15 Page 21 of 38 exceeding twelve (12) pages of a continuous block of Source Code or exceeding 50 pages total of Source Code, the burden shall be on the Producing Party to demonstrate that such printed portions are no more than is reasonably necessary for a permitted purpose and not merely printed for the purposes of review and analysis elsewhere. For Source Code printouts exceeding twelve (12) pages of a continuous block of Source Code or exceeding 50 pages total of Source Code, the burden shall be on the Receiving Party to demonstrate that such printed portions are no more than is reasonably necessary for a permitted purpose and not merely printed for the purposes of review and analysis elsewhere. Upon printing any such portions of Source Code, the printed pages shall be collected by the Producing Party. The printed pages shall constitute part of the Source Code produced by the Producing Party in this action. Outside Counsel for the Producing Party will keep the originals of these printed documents, and copies shall be made for Outside Counsel for the Receiving Party on watermarked paper labeled with "[PRODUCING PARTY'S NAME] CONFIDENTIAL- OUTSIDE ATTORNEYS' EYES ONLY — SOURCE CODE." It is the responsibility of the Producing Party to ensure delivery of the printed documents to outside counsel for the Receiving Party within two (2) days of the completion of the Producing Party's time to object to the printed portion of the Source Code or the resolution of any objection that the Producing Party raises, whichever is later. (vi) The Receiving Party shall identify in writing all persons (including members of a Receiving Party's outside law firm) of the Receiving Party's outside counsel and/or experts who will review or be given access to the Producing Party's Source Code at least twenty-one (21) days prior to the first time any such individual reviews or is given access to the Source Code, and, during such period, the Producing Party may object to providing access to any persons so identified. The Receiving Party shall provide five (5) days' notice any time each such AGREED PROTECTIVE ORDER - PAGE 21 117749978_10 8 individual is given access to the Source Code after the first time, although the parties will be reasonable in accommodating notice of less than five (5) days. If an objection to an individual is made by the Producing Party, it will be the burden of the Producing Party to prove that the individual should not be authorized to inspect the Producing Party's Source Code. 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 Source Code Review Room to view the Source Code and when they enter and depart. The Producing Party shall be entitled to a copy of the log upon one (1) day's advance notice to the Receiving Party. (vii) Unless otherwise agreed in advance by the Parties in writing, following each day on which inspection of Source Code is done under this Order, the Receiving Party's outside counsel and/or experts shall remove all notes, documents, and all other materials from the Source Code Review Room. The Producing Party shall not be responsible for any items left in the room following each inspection session, and the Receiving Party shall have no expectation of confidentiality for any items left in the room following each inspection session without a prior agreement to that effect. Proper identification of all authorized persons shall be provided prior to any access to the Source Code Review Room or to the Confidential Source Code Computer. Proper identification requires showing, at a minimum, a photo identification card sanctioned by the government of any State of the United States, by the government of the United States, or by the nation state of the authorized person's current citizenship. Access to the Source Code Review Room or the Confidential Source Code Computer may be denied, at the discretion of the Producing Party, to any individual who fails to provide proper identification. (viii) Other than as provided in subparagraphs 11(c)(iii) and (v), the Receiving Party will not copy, remove, or otherwise transfer any Source Code from the AGREED PROTECTIVE ORDER - PAGE 22 117749978_10 8 Confidential Source Code Computer including, without limitation, copying, removing, or transferring the Source Code onto any recordable media or recordable device, including without limitation sound recorders, computers, cellular telephones, peripheral equipment, cameras, CDs, DVDs, or drives of any kind. The Receiving Party will not transmit any Source Code in any way, including from the Producing Party's facilities, the offices of the Producing Party's Outside Counsel, or the offices of the Receiving Party's Outside Counsel. (ix) The Receiving Party's Outside Counsel may make no more than three (3) additional paper copies of any portions of the Source Code received from a Producing Party pursuant to subparagraph 11(c)(v), not including copies attached to court filings or used at depositions. The Receiving Party shall maintain a Source Code Access Log (the "Source Code Access Log") identifying each hard copy (or electronic copy as permitted by subparagraph 11(c)(xii)) of Source Code that it has in its possession and, for each and every time the hard copy (or electronic copy as permitted by subparagraph 11(c)(xii)) of the Source Code is viewed, the following additional information: (i) the name of each person who viewed or received the Source Code; (ii) the locations where the paper copies are stored; and (iii) whether any portion of the Source Code was copied and, if so, what portion was copied. The Producing Party shall be entitled to a copy of the Source Code Access Log upon one (1) day's advance notice to the Receiving Party. Within thirty (30) days after the issuance of a final, non-appealable decision resolving all issues in the above-captioned action, the Receiving Party must serve upon the Producing Party the Source Code Access Log. Additionally, within thirty (30) days after the issuance of a final, non-appealable decision resolving all issues in the above-captioned action, all persons to whom the paper copies of the Source Code were provided must certify in writing that all copies of the Source Code were returned to Counsel of Record for the Producing Party and AGREED PROTECTIVE ORDER - PAGE 23 117749978 10 8 that they will make no use of the Source Code or of any knowledge gained from the Source Code in any future endeavor. (x) In addition to other reasonable steps to maintain the security and confidentiality of the Producing Party's Source Code, printed copies of the Source Code maintained by the Receiving Party's outside counsel (and any person receiving a copy of any Source Code) must be kept at their offices in a manner that prevents duplication of or unauthorized access to the Source Code, including, without limitation, storing the Source Code in a locked room or cabinet when not in use. No electronic copies of the Source Code shall be provided by the Producing Party beyond the Confidential Source Code Computer. Except as otherwise authorized by the Producing Party, no more than the seven (7) individuals identified by the Receiving Party in subparagraph 11(c)(i) shall have access to the printed portions of Source Code (except insofar as such code appears in any filing with the Court or expert report in these cases). (xi) For depositions, the Receiving Party shall not bring copies of any printed Source Code. Rather, at least five (5) days before the date of the deposition, the Receiving Party shall notify the Producing Party about the specific portions of Source Code it wishes to use at the deposition, and the Producing Party shall bring printed copies of those portions to the deposition for use by the Receiving Party. Copies of Source Code 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. All paper copies of Source Code brought to the deposition shall remain with Producing Party's Outside Counsel for secure destruction in a timely manner following the deposition. AGREED PROTECTIVE ORDER - PAGE 24 117749978 10 Case 4:15-CV-03755-HSG Document 46 Filed 04/14/15 Page 25 of 38 (xii) Except as provided herein, absent express written permission from the Producing Party, the Receiving Party may not create electronic images, or any other images, or make electronic copies, of the Source Code from any paper copy of Source Code for use in any manner (including, by way of example only, the Receiving Party may not scan the Source Code to a PDF or photograph the Source Code). Images or copies of Source Code 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 whenever possible. If a Party reasonably believes that it needs to submit a portion of Source Code as part of a filing with the Court, the Parties shall meet and confer as to how to make such a filing while protecting the confidentiality of the Source Code and such filing will not be made absent agreement from the Producing Party that the confidentiality protections will be adequate. If a Producing Party agrees to produce an electronic copy of all or any portion of its Source Code or provide written permission to the Receiving Party that an electronic or any other copy needs to be made for a Court filing, access to the Receiving Party's submission, communication, and/or disclosure of electronic files or other materials containing any portion of Source Code (paper or electronic) shall at all times be limited solely to individuals who are expressly authorized to view Source Code under the provisions of this Order. Where the Producing Party has provided the express written permission required under this provision for a Receiving Party to create electronic copies of Source Code, the Receiving Party shall maintain a log of all such electronic copies of any portion of Source Code in its possession or in the possession of its retained consultants, including the names of the reviewers and/or recipients of any such electronic copies, and the locations and manner in which the electronic copies are stored. Additionally, any such electronic copies must AGREED PROTECTIVE ORDER - PAGE 25 117749978_10 Case 4:15-cv-03755-HSG Document 46 Filed 04/14/15 Page 26 of 38 be labeled "CONFIDENTIAL- OUTSIDE ATTORNEYS' EYES ONLY - SOURCE CODE" as provided for in this Order. (xiii) In order to verify that its Source Code has not later been altered, the Producing Party may benchmark the materials before and after they are provided but shall not install any keystroke or other monitoring software on the Confidential Source Code Computer. NOTICE OF DISCLOSURE (a) Prior to disclosing any Protected Material to any person described in Paragraphs 8(b)(ii), 8(b)(ii), 9(b)(ii), or 10(c)(ii) (referenced below as "Person"), the Party seeking to disclose such information shall provide the Producing Party with written notice that includes: (i) the name of the Person; (ii) an up-to-date curriculum vitae of the Person; (iii) the present employer and title of the Person; (iv) an identification of all of the Person's past and current employment and consulting relationships, including direct relationships and relationships through entities owned or controlled by the Person, including but not limited to an identification of any individual or entity with or for whom the person is employed or to whom the person provides consulting services relating to the design, development, operation, or patenting of mobile tethering technology or of remote control of mobile communication devices such as cellular telephones, or relating to the acquisition of intellectual property assets relating to mobile tethering technology AGREED PROTECTIVE ORDER - PAGE 26 117749978_10 8 or of remote control of mobile communication devices such as cellular telephones, for the past five (5) years; (v) an identification of all pending patent applications on which the Person is named as an inventor, in which the Person has any ownership interest, or as to which the Person has had or anticipates in the future any involvement in advising on, consulting on, preparing, prosecuting, drafting, editing, amending, or otherwise affecting the scope of the claims; and (vi) a list of the cases in which the Person has testified at deposition or trial within the last five (5) years. Further, the Party seeking to disclose Protected Material shall provide such other information regarding the Person's professional activities reasonably requested by the Producing Party for it to evaluate whether good cause exists to object to the disclosure of Protected Material to the outside expert or consultant. During the pendency of and until the final resolution of these actions, including all appeals, the Party seeking to disclose Protected Material shall immediately provide written notice of any change with respect to the Person's involvement in the design, development, operation or patenting of mobile tethering technology or of remote control of mobile communication devices such as cellular telephones, or the acquisition of intellectual property assets relating to mobile tethering technology or of remote control of mobile communication devices such as cellular telephones. (b) Within seven (7) days of receipt of the disclosure of the Person, the Producing Party or Parties may object in writing to the Person for good cause. In the absence of an objection at the end of the seven (7) day period, the Person shall be deemed approved under this Protective Order. There shall be no disclosure of Protected Material to the Person prior to AGREED PROTECTIVE ORDER - PAGE 27 117749978_10 8 expiration of this seven (7) day period. If the Producing Party objects to disclosure to the Person within such seven (7) day period, the Parties shall meet and confer via telephone or in person within seven (7) days following the objection and attempt in good faith to resolve the dispute on an informal basis. If the dispute is not resolved, the Party objecting to the disclosure will have seven (7) days from the date of the meet and confer to seek relief from the Court. If relief is not sought from the Court within that time, the objection shall be deemed withdrawn. If relief is sought, designated materials shall not be disclosed to the Person in question until the Court resolves the objection. (c) For purposes of this section, "good cause" shall include an objectively reasonable concern that the Person will, advertently or inadvertently, use or disclose Discovery Materials in a way or ways that are inconsistent with the provisions contained in this Order. (d) Prior to receiving any Protected Material under this Order, the Person must execute a copy of the "Agreement to Be Bound by Protective Order" (Exhibit A hereto) and serve it on all Parties. (e) An initial failure to object to a Person under this Paragraph 12 shall not preclude the non-objecting Party from later objecting to continued access by that Person based on new facts or circumstances for good cause. In this event, a Party must make a written objection to the other Party concerning the continued access of Protected Material by that Person, and the Parties shall meet and confer via telephone or in person within five (5) days following the objection and attempt in good faith to resolve the dispute informally. If the dispute is not resolved, the Party objecting to the disclosure will have five (5) days from the date of the meet and confer to seek relief from the Court. The designated Person may continue to have access to information that was provided to such Person prior to the date of the objection. If a AGREED PROTECTIVE ORDER - PAGE 28 117749978_10 8 later objection is made, no further Protected Material shall be disclosed to the Person until the Court resolves the matter or the Producing Party withdraws its objection. Notwithstanding the foregoing, if the Producing Party fails to move for a protective order within five (5) business days after the meet and confer, further Protected Material may thereafter be provided to the Person. CHALLENGING DESIGNATIONS OF PROTECTED MATERIAL (a) A Party shall not be obligated to challenge the propriety of any designation of Discovery Material under this Order at the time the designation is made, and a failure to do so shall not preclude a subsequent challenge thereto. (b) Any challenge to a designation of Discovery Material under this Order shall be written, shall be served on Outside Counsel for the Designating Party, shall particularly identify the documents or information that the Receiving Party contends should be differently designated, and shall state the grounds for the objection. Thereafter, further protection of such material shall be resolved in accordance with the following procedures: (i) The Designating Party must respond either in person, in writing, or by telephone, within five (5) business days, or within such time agreed to by counsel or as ordered by the Court. In the event the Designating Party fails to respond to the objection, then the information subject to challenge shall no longer be treated as Protected Material; (ii) Failing agreement, the Receiving Party may bring a motion to the Court for a ruling that the Discovery Material in question is not entitled to the status and protection of the Designating Party's designation. Any such motion must be filed within five (5) business days after the Designating Party responds to the objection, unless the parties agree to a different schedule. In addition, any such motion shall comply with L. Cv. R. 37.2 and with AGREED PROTECTIVE ORDER - PAGE 29 117749978_10 8 Paragraph 2.G. of this Court's Individual Practices. The Parties' entry into this Order shall not preclude or prejudice either Party from arguing for or against any designation, establish any presumption that a particular designation is valid, or alter the burden of proof that would otherwise apply in a dispute over discovery or disclosure of information; (iii) Notwithstanding any challenge to a designation, the Discovery Material in question shall continue to be treated as designated under this Order until one of the following occurs: (a) the Designating Party withdraws such designation in writing; or (b) the Court rules that the Discovery Material in question is not entitled to the designation. 14. SUBPOENAS OR COURT ORDERS (a) If at any time Protected Material is subpoenaed by any court, arbitral, administrative, or legislative body, the Party to whom the subpoena or other request is directed shall immediately give prompt written notice thereof to every Party who has produced such Discovery Material and to its counsel and shall provide each such Party with an opportunity to move for a protective order regarding the production of Protected Materials implicated by the subpoena. 15. FILING PROTECTED MATERIAL (a) Absent written permission from the Designating Party or a court Order secured after appropriate notice to all interested persons, a Receiving Party may not file or disclose in the public record any Protected Material. (b) Any Party is authorized under Individual Rule 3 (as described in Judge Richard J. Sullivan's Individual Rules) to file under seal with the Court any brief, document or materials that are designated as Protected Material under this Order. However, nothing in this section shall in any way limit or detract from this Order's requirements as to Source Code. AGREED PROTECTIVE ORDER - PAGE 30 117749978 10 Case 4:15-CV-03755-HSG Document 46 Filed 04/14/15 Page 3 of 38 protection at all, or does not qualify for the level of protection initially asserted, the Producing Party must promptly notify all other Parties that it is withdrawing or changing the designation. 2. DEFINITIONS (a) "Designating Party" means any person who designated Protected Material in these Actions pursuant to this Order. (b) "Discovery Material" means all items or information, including from any non-party, regardless of the medium or manner generated, stored, or maintained (including, among other things, testimony, transcripts, or tangible things) that are produced, disclosed, or generated in connection with discovery or Rule 26(a) disclosures in these cases. (c) "Outside Counsel" means (i) outside counsel who appear on the pleadings as counsel for a Party and (ii) partners, associates, and staff of such counsel to whom it is reasonably necessary to disclose the information for this litigation. (d) "Patents-in-suit" means U.S. Patent Nos. 7,039,033; 7,295,532; 7,426,398; and 7,016,648, and any other patent asserted in this action, as well as any related patents, patent applications, provisional patent applications, continuations, and/or divisionals. (e) "Party" means any party to these cases, including all of its officers, directors, employees, consultants, retained experts, and Outside Counsel and their support staffs. (f) "Producing Party" means any Party or non-party that discloses or produces any Discovery Material in these cases. (g) "Protected Material" means any Discovery Material that is designated as "CONFIDENTIAL," "CONFIDENTIAL - ATTORNEYS' EYES ONLY," or "CONFIDENTIAL -OUTSIDE ATTORNEYS' EYES ONLY - SOURCE CODE," as provided for in this Order. Protected Material shall not include: (i) advertising materials that have been AGREED PROTECTIVE ORDER - PAGE 3 117749978_10 Case 4:15-CV-03755-HSG Document 46 Filed 04/14/15 Page 4 of 38 actually published or publicly disseminated; and (ii) materials that show on their face they have been disseminated to the public. (h) "Receiving Party" means any Party who receives Discovery Material from a Producing Party. (i) "Source Code" means confidential and proprietary, in whole or in part, computer code, scripts, assembly, binaries, object code, source code listings and descriptions of source code, object code listings and descriptions of object code, and Hardware Description Language (HDL) or Register Transfer Level (RTL) files that describe the hardware design of any ASIC or other chip. 3. COMPUTATION OF TIME The computation of any period of time prescribed or allowed by this Order shall be governed by the provisions for computing time set forth in Federal Rules of Civil Procedure 6. 4. SCOPE (a) The protections conferred by this Order cover not only Discovery Material governed by this Order as addressed herein, but also any information copied or extracted therefrom, as well as all copies, excerpts, summaries, or compilations thereof, plus testimony, conversations, or presentations by Parties or their counsel in court or in other settings that might reveal Protected Material. (b) Nothing in this Protective Order shall prevent or restrict a Producing Party's own disclosure or use of its own Protected Material for any purpose, and nothing in this Order shall preclude any Producing Party from showing its Protected Material to an individual who prepared the Protected Material. AGREED PROTECTIVE ORDER - PAGE 4 117749978_10 Case 4:15-CV-03755-HSG Document 46 Filed 04/14/15 Page 31 of 38 16. INADVERTENT DISCLOSURE OF PRIVILEGED MATERIAL (a) The inadvertent production by a Party of Discovery Material subject to the attorney-client privilege, work-product protection, or any other applicable privilege or protection, despite the Producing Party's reasonable efforts to prescreen such Discovery Material prior to production, will not waive the applicable privilege and/or protection if a request for return of such inadvertently produced Discovery Material is made promptly after the Producing Party learns of its inadvertent production. (b) Upon a request from any Producing Party who has inadvertently produced Discovery Material that it believes is privileged and/or protected, each Receiving Party shall immediately return such Protected Material or Discovery Material and all copies to the Producing Party (even if the Receiving Party disagrees with the basis for the request), except for any pages containing privileged markings by the Receiving Party which shall instead be destroyed and certified as such by the Receiving Party to the Producing Party. (c) Nothing herein shall prevent the Receiving Party from preparing a record for its own use containing the date, author, addresses, and topic of the inadvertently produced Discovery Material and such other information as is reasonably necessary to identify the Discovery Material and describe its nature to the Court in any motion to compel production of the Discovery Material. 17. INADVERTENT FAILURE TO DESIGNATE PROPERLY (a) The inadvertent failure by a Producing Party to designate Discovery Material as Protected Material with one of the designations provided for under this Order shall not waive any such designation provided that the Producing Party notifies all Receiving Parties that such Discovery Material is protected under one of the categories of this Order within AGREED PROTECTIVE ORDER - PAGE 31 117749978_10 8 fourteen (14) days of the Producing Party learning of the inadvertent failure to designate. The Producing Party shall reproduce the Protected Material with the correct confidentiality designation within seven (7) days upon its notification to the Receiving Parties. Upon receiving the Protected Material with the correct confidentiality designation, the Receiving Parties shall return or securely destroy, at the Producing Party's option, all Discovery Material that was not designated properly. (b) A Receiving Party shall not be in breach of this Order for any use of such Discovery Material before the Receiving Party receives such notice that such Discovery Material is protected under one of the categories of this Order, unless an objectively reasonable person would have realized that the Discovery Material should have been appropriately designated with a confidentiality designation under this Order. Once a Receiving Party has received notification of the correct confidentiality designation for the Protected Material with the correct confidentiality designation, the Receiving Party shall treat such Discovery Material (subject to the exception in Paragraph 17(c) below) at the appropriately designated level pursuant to the terms of this Order. (c) Notwithstanding the "CONFIDENTIAL," "CONFIDENTIAL above, a subsequent designation - ATTORNEYS' EYES ONLY" of or "CONFIDENTIAL – ATTORNEYS' EYES ONLY - SOURCE CODE" shall apply on a going forward basis and shall not disqualify anyone who reviewed "CONFIDENTIAL," "CONFIDENTIAL – ATTORNEYS' EYES ONLY" or "CONFIDENTIAL – ATTORNEYS' EYES ONLY - SOURCE CODE" materials while the materials were not marked "CONFIDENTIAL - ATTORNEYS' EYES ONLY" or "CONFIDENTIAL – ATTORNEYS' EYES ONLY - SOURCE CODE" from engaging in the activities set forth in Paragraph 6(b). AGREED PROTECTIVE ORDER - PAGE 32 117749978_10 Case 4:15-CV-03755-HSG Document 46 Filed 04/14/15 Page 33 of 38 18. INADVERTENT DISCLOSURE NOT AUTHORIZED BY ORDER (a) In the event of a disclosure of any Discovery Material pursuant to this Order to any person or persons not authorized to receive such disclosure under this Protective Order, the Party responsible for having made such disclosure, and each Party with knowledge thereof, shall immediately notify counsel for the Producing Party whose Discovery Material has been disclosed and provide to such counsel all known relevant information concerning the nature and circumstances of the disclosure. The responsible disclosing Party shall also promptly take all reasonable measures to retrieve the improperly disclosed Discovery Material and to ensure that no further or greater unauthorized disclosure and/or use thereof is made. (b) Unauthorized or inadvertent disclosure does not change the status of Discovery Material or waive the right to hold the disclosed document or information as Protected. 19. FINAL DISPOSITION (a) Not later than ninety (90) days after the Final Disposition of these cases, each Party shall return all Discovery Material of a Producing Party to the respective Outside Counsel of the Producing Party or destroy such Material, at the option of the Producing Party. For purposes of this Order, "Final Disposition" occurs after an order, mandate, or dismissal finally terminating the above-captioned action with prejudice, including all appeals. (b) All Parties that have received any such Discovery Material shall certify in writing that all such materials have been returned to the respective Outside Counsel of the Producing Party or destroyed. Notwithstanding the provisions for return of Discovery Material, Outside Counsel may retain one set of pleadings, correspondence and attorney and consultant AGREED PROTECTIVE ORDER - PAGE 33 117749978_10 Case 4:15-CV-03755-HSG Document 46 Filed 04/14/15 Page 34 of 38 work product (but not document productions) for archival purposes, but must return any pleadings, correspondence, and consultant work product that contain Source Code. 20. DISCOVERY FROM EXPERTS OR CONSULTANTS (a) Absent good cause, drafts of reports of testifying experts, and reports and other written materials, including drafts, of consulting experts, shall not be discoverable subject to Fed. R. Civ. P. 26(b)(4)(B). (b) Reports and materials exempt from discovery under the foregoing Paragraph shall be treated as attorney work product for the purposes of these cases and Protective Order. (c) Testifying experts shall not be subject to discovery with respect to any draft of his or her report(s) in these cases. Draft reports, notes, or outlines for draft reports developed and drafted by the testifying expert and/or his or her staff are also exempt from discovery (d) Discovery of materials provided to testifying experts shall be limited to those materials, facts, consulting expert opinions, and other matters actually relied upon by the testifying expert in forming his or her final report, trial, or deposition testimony or any opinion in these cases. No discovery can be taken from any non-testifying expert except to the extent that such non-testifying expert has provided information, opinions, or other materials to a testifying expert relied upon by that testifying expert in forming his or her final report(s), trial, and/or deposition testimony or any opinion in these cases. (e) No conversations or communications between counsel and any testifying or consulting expert will be subject to discovery unless the conversations or communications are AGREED PROTECTIVE ORDER - PAGE 34 117749978 10 8 relied upon by such experts in formulating opinions that are presented in reports or trial or deposition testimony in these cases. (f) Materials, communications, and other information exempt from discovery under the foregoing Paragraphs 20(a)-(e) shall be treated as attorney-work product for the purposes of this litigation and Order. (g) Nothing in Protective Order, include Paragraphs 20(a)-(f), shall alter or change in any way the requirements in Paragraph 11 regarding Source Code, and Paragraph 11 shall control in the event of any conflict. 21. MISCELLANEQUS (a) Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the Court in the future. By stipulating to this Order, the Parties do not waive the right to argue that certain material may require additional or different confidentiality protections than those set forth herein. (b) Termination of Matter and Retention of Jurisdiction. The Parties agree that the terms of this Protective Order shall survive and remain in effect after the Final Determination of the above-captioned matter. The Court shall retain jurisdiction after Final Determination of this matter to hear and resolve any disputes arising out of this Protective Order. (c) Successors. This Order shall be binding upon the Parties hereto, their attorneys, and their successors, executors, personal representatives, administrators, heirs, legal representatives, assigns, subsidiaries, divisions, employees, agents, retained consultants and experts, and any persons or organizations over which they have direct control. (d) Right to Assert Other Objections. By stipulating to the entry of this Protective Order, no Party waives any right it otherwise would have to object to disclosing or AGREED PROTECTIVE ORDER - PAGE 35 117749978 10 Case 4:15-CV-03755-HSG Document 46 Filed 04/14/15 Page 36 of 38 producing any information or item. Similarly, no Party waives any right to object on any ground to use in evidence of any of the material covered by this Protective Order. This Order shall not constitute a waiver of the right of any Party to claim in this action or otherwise that any Discovery Material, or any portion thereof, is privileged or otherwise non-discoverable, or is not admissible in evidence in this action or any other proceeding. (e) Burdens of Proof. Notwithstanding anything to the contrary above, nothing in this Protective Order shall be construed to change the burdens of proof or legal standards applicable in disputes regarding whether particular Discovery Material is confidential, which level of confidentiality is appropriate, whether disclosure should be restricted, and if so, what restrictions should apply. (1) Modification by Court. This Order is subject to further court order based upon public policy or other considerations, and the Court may modify this Order sua sponte in the interests of justice. The United States District Court for the Southern District of New York is responsible for the interpretation and enforcement of this Order. All disputes concerning Protected Material, however designated, produced under the protection of this Order shall be resolved by the United States District Court for the Southern District of New York (g) Discovery Rules Remain Unchanged. Nothing herein shall alter or change in any way the discovery provisions of the Federal Rules of Civil Procedure, the Local Rules for the United States District Court for the Southern District of New York or the Court's own orders. Identification of any individual pursuant to this Protective Order does not make that individual AGREED PROTECTIVE ORDER - PAGE 36 117749978 10 8 available for deposition or any other form of discovery outside of the restrictions and procedures of the Federal Rules of Civil Procedure, the Local Rules for the United States District Court for the Southern District of New York, or the Court's own orders. SO ORDERED. resil *49425 United States District Judge AGREED PROTECTIVE ORDER - PAGE 37 117749978_10 8 EXHIBIT A acknowledge and declare that I have received a copy of the Protective Order ("Order") in IXI Mobile (R&D), Ltd. v. Samsung Electronics Co., United States District Court, District of Southern District of New York, Civil Action No. 14-cv-4355 (RJS); IXI Mobile (R&D), Ltd. v. Blackberry, Ltd., United States District Court, Southern District of New York, Civil Action No. 14-cv-4428 (RJS); and IXI Mobile (R&D), Ltd. v. Apple Inc., United States District Court, Southern District of New York, Civil Action No. No. 14-cv-7954 (RJS). Having read and understood the terms of the Order, I agree to be bound by the terms of the Order and consent to the jurisdiction of said Court for the purpose of any proceeding to enforce the terms of the Order. Name of individual: Present occupation/job description: Name of Company or Firm: Address: Dated: [Signature] AGREED PROTECTIVE ORDER - PAGE 38 117749978_10 Case 4:15-CV-03755-HSG Document 46 Filed 04/14/15 Page 5 of 38 (c) Nothing in this Order shall be construed to prejudice any Party's right to use any Protected Material in court or in any court filing with the consent of the Producing Party or by order of the Court. (d) This Order is without prejudice to the right of any Party to seek further or additional protection of any Discovery Material or to modify this Order in any way, including, without limitation, an order that certain matter not be produced at all. 5. DURATION Even after the termination of these cases, the confidentiality obligations imposed by this Order shall remain in effect until a Producing Party agrees otherwise in writing or a court order otherwise directs. 6. ACCESS TO AND USE OF PROTECTED MATERIAL (a) Basic Principles. All Protected Material shall be used solely for these cases or any related appellate proceeding, and not for any other purpose whatsoever, including without limitation any other litigation, patent prosecution or acquisition, patent reexamination or reissue proceedings, or any business or competitive purpose or function. Protected Material shall not be distributed, disclosed or made available to anyone except as expressly provided in this Order. (b) Patent Prosecution Bar. Absent the written consent of the Producing Party, any person on behalf of the plaintiffs who receives one or more items designated "CONFIDENTIAL - ATTORNEYS' EYES ONLY" or "CONFIDENTIAL - ATTORNEYS' EYES ONLY - SOURCE CODE" and that contains technical information relating to the functionality, operation, and design of mobile hotspot functionality or of remote control of mobile communication devices such as cellular telephones (generally or as described in any AGREED PROTECTIVE ORDER - PAGE 5 117749978 10 Case 4:15-CV-03755-HSG Document 46 Filed 04/14/15 Page 6 of 38 patent in suit), or related to the subject matter of any patent in suit, shall not be involved, directly or indirectly, in any of the following activities: (i) advising on, consulting on, preparing, prosecuting, drafting, editing, and/or amending of patent applications (including specifications or claims) and/or responses to office actions, or otherwise affecting the scope of claims in patents or patent applications relating to the functionality, operation, and design of mobile hotspot technology or of remote control of mobile communication devices such as cellular telephones (generally or as described in any patent in suit), before any foreign or domestic agency, including the United States Patent and Trademark Office ("PTO"); and (ii) the acquisition of patents (including patent applications), or the rights to any such patents or patent applications with the right to sublicense, relating to the functionality, operation, and design of mobile hotspot technology or of remote control of mobile communication devices such as cellular telephones. These prohibitions shall begin when access to "CONFIDENTIAL – ATTORNEYS' EYES ONLY" or "CONFIDENTIAL – ATTORNEYS' EYES ONLY - SOURCE CODE" materials are first received by the affected individual, and shall end two (2) years after the final resolution of this action, including all appeals. (c) These prohibitions are not intended to and shall not preclude counsel from participating in proceedings on behalf of a Party challenging the validity of any patent, but are intended, inter alia, to preclude counsel from participating directly or indirectly in amendment of claims, presentation of new claims, presenting arguments to distinguish prior art, or otherwise affecting the scope of patent claims during reexamination, inter partes review, covered business method review, or reissue proceedings on behalf of a patentee. (d) Secure Storage, No Export. Protected Material must be stored and maintained by a Receiving Party at a location in the United States and in a secure manner that AGREED PROTECTIVE ORDER - PAGE 6 117749978_10 Case 4:15-CV-03755-HSG Document 46 Filed 04/14/15 Page 7 of 38 ensures that access is limited to the persons authorized under this Order. To ensure compliance with applicable United States Export Administration Regulations, Protected Material may not be exported outside the United States or released to any foreign national (even if within the United States). (e) Legal Advice Based on Protected Material. Nothing in this Protective Order shall be construed to prevent counsel from advising their clients with respect to these cases based in whole or in part upon Protected Materials, provided counsel does not disclose the Protected Material itself except as provided in this Order. (f) Limitations. Nothing in this Order shall restrict in any way a Producing Party's use or disclosure of its own Protected Material. Nothing in this Order shall restrict in any way the use or disclosure of Discovery Material by a Receiving Party: (i) that is or has become publicly known through no fault of the Receiving Party; (ii) that is lawfully acquired by or known to the Receiving Party independent of the Producing Party; (iii) previously produced, disclosed and/or provided by the Producing Party to the Receiving Party or a non-party without an obligation of confidentiality and not by inadvertence or mistake; (iv) with the consent of the Producing Party; or (v) pursuant to order of the Court. (g) Cross-Production of Defendant Confidential Material. No Defendant is required to produce its Protected Material to any other Defendant or Defendants, but nothing in this Order shall preclude such production. Notwithstanding the provisions of this Protective Order, Plaintiffs shall not disclose one Defendant's Protected Material to any other Defendant or Defendants through Court filings, oral argument in Court, expert reports, deposition, discovery requests, discovery responses, or any other means, without the express prior written consent of the Defendant that produced the Protected Material. The Parties will confer in good faith AGREED PROTECTIVE ORDER - PAGE 7 117749978_10 Case 4:15-CV-03755-HSG Document 46 Filed 04/14/15 Page 8 of 38 regarding any such request from Plaintiffs for such express prior written consent, and nothing in this Order is intended to determine or suggest that any such request from Plaintiffs for such express prior written consent is presumptively invalid. In the event any Party intends to use Protected Material of any Defendant at any deposition, hearing, or other proceeding, the Parties will confer in good faith in an effort to agree upon procedures to permit all Parties or their Outside Counsel to participate in any such proceeding. 7. DESIGNATING PROTECTED MATERIAL (a) Available Designations. Any Producing Party may designate Discovery Material with any of the following designations, provided that it meets the requirements for such designations as provided for herein: "CONFIDENTIAL," "CONFIDENTIAL – ATTORNEYS EYES ONLY," or "CONFIDENTIAL- OUTSIDE ATTORNEYS' EYES ONLY - SOURCE CODE." (b) Written Discovery and Documents and Tangible Things. Written discovery, documents (which include "electronically stored information," as that phrase is used in Federal Rule of Procedure 34), and tangible things that meet the requirements for the confidentiality designations listed in Paragraph 7(a) may be so designated by placing the appropriate designation on every page of the written material prior to production. For digital files being produced, the Designating Party may mark each viewable page or image with the appropriate designation, and mark the medium, container, and/or communication in which the digital files were contained. In the event that original documents are produced for inspection, the original documents shall be presumed "CONFIDENTIAL – ATTORNEYS' EYES ONLY" during the inspection and re-designated, as appropriate during the copying process. AGREED PROTECTIVE ORDER - PAGE 8 117749978 10 Case 4:15-CV-03755-HSG Document 46 Filed 04/14/15 Page 9 of 38 (c) Native Files. Where electronic files and documents are produced in native electronic format, such electronic files and documents shall be designated for protection under this Order by appending to the file names or designators information indicating whether the file contains "CONFIDENTIAL," "CONFIDENTIAL - ATTORNEYS' EYES ONLY," or "CONFIDENTIAL-OUTSIDE ATTORNEYS' EYES ONLY - SOURCE CODE," material, or shall use any other reasonable method for so designating Protected Materials produced in electronic format. When electronic files or documents are printed for use at deposition, in a court proceeding, or for provision in printed form to an expert or consultant pre-approved pursuant to paragraph 12, the party printing the electronic files or documents shall affix a legend to the printed document corresponding to the designation of the Designating Party and including the production number and designation associated with the native file. No one shall seek to use in this litigation a .tiff, .pdf or other image format version of a document produced in native file format without first (1) providing a copy of the image format version to the Designating Party so that the Designating Party can review the image to ensure that no information has been altered, and (2) obtaining the consent of the Designating Party, which consent shall not be unreasonably withheld. The Parties may agree to an alternative procedure for handling native files if good cause arises. (d) Depositions and Testimony. Parties or testifying persons or entities may designate depositions and other testimony with the appropriate designation by indicating on the record at the time the testimony is given or by sending written notice of how portions of the transcript of the testimony is designated within thirty (30) days of receipt of the transcript of the testimony. If no indication on the record is made, all information disclosed during a deposition shall be deemed "CONFIDENTIAL – ATTORNEYS' EYES ONLY" until the time within AGREED PROTECTIVE ORDER - PAGE 9 117749978 10 8 which it may be appropriately designated as provided for herein has passed. Any Party that wishes to disclose the transcript, or information contained therein, may provide written notice of its intent to treat the transcript as non-confidential, after which time any Party that wants to maintain any portion of the transcript as confidential must designate the confidential portions within fourteen (14) days, or else the transcript may be treated as non-confidential. Any Protected Material that is used in the taking of a deposition shall remain subject to the provisions of this Protective Order, along with the transcript pages of the deposition testimony dealing with such Protected Material. In such cases the court reporter shall be informed of this Protective Order and shall be required to operate in a manner consistent with this Protective Order. In the event the deposition is videoed, the original and all copies of the video shall be marked by the video technician to indicate that the contents of the video are subject to this Protective Order, substantially along the lines of "This video contains confidential testimony used in these cases and is not to be viewed or the contents thereof to be displayed or revealed except pursuant to the terms of the operative Protective Order in this matter or pursuant to written stipulation of the parties." Counsel for any Designating Party shall have the right to exclude from oral depositions, other than the deponent, deponent's counsel, the reporter and videographer (if any), any person who is not authorized by this Protective Order to receive or access Protected Material based on the designation of such Protected Material. Such right of exclusion shall be applicable only during periods of examination or testimony regarding such Protected Material. 8. DISCOVERY MATERIAL DESIGNATED AS "CONFIDENTIAL" AGREED PROTECTIVE ORDER - PAGE 10 117749978_10