Match Group, LLC v. Bumble Trading Inc.

Western District of Texas, txwd-6:2018-cv-00080

Exhibit D

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6 Exhibit D Case Case6:18-cv-00080-ADA 1:17-cv-03473-JGK Document Document50-4 98 Filed Filed02/23/18 01/08/19 Page Page12ofof25 26 USOC SONY DOCUMENT fD)~©~~w~'D' ELECTRONICALLY FILED DOC# UNITED STATES DISTIUCT COURT lJl) F~e '8 za1e llJ:U DA TE F=l-LE=-D-:-:;"?!lr--.Q(......,..,'3,......,-../-"'~'+-- SOUTHERN DISTRICT OF NEW YORK CHAMBERS~ JOHN G KOELTL .___ _ _ __.U,, S.D.J. MIRROR WORLDS TECHNOLOGIES, LLC, Civil Action No. l: l 7-cv-3473 (JGK) Plaintiff, .TURY TRIAL DEMANDED v. FACEBOOK, INC., Defendant. STIPULATED PROTECTIVE ORDER 1. PU~OSES AND LIMITATIONS Disclosure and discovery activity in this actidn are likely to involve production of confidential, proprietary, or JJrivate information for which special protection from public disclosure and from l.1se for any purpose other than prosecuting this litigation .tnay be warranted. Accordingly, the patties hereby stipulate to and petition the court to enter the following Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket protections on all disclosures or responses to discovery and that the protection it affords from public disclosure· and use extends only to the limited infommtion or items that are entitled to confidential treatment under the applicable legal principles. 2. DEFINITION~ 2.1 Challenging Partx: a Party or Non-Party that challenges the designation of information or items under this Order. 2.2 "CONFIDENTIAL" Information or Items: information (regardless of how it is generated, stored or maiutained) or tangible things that qualify for protection under Federal Rule 'II. • .. . -· Case Case6:18-cv-00080-ADA 1:17-cv-03473-JGK Document Document50-4 98 Filed Filed02/23/18 01/08/19 Page Page23ofof25 26 of Civil Procedure 26(c). 2.3 Counsel (without gualifier): Outside Counsel of Re.cord and House Counsel (as well as their support staff). 2.4 Designating Party: a Party or Non-Party that designates information or items that it produces in disclosures or in responses to discovery as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY" or "HIGHLY CONFIDEi.WIAL - SOURCE CODE" or "HIGHLY CONFIDENTIAL PATENT PROSECUTION BAR." 2.5 Discios\ll'e or Discovery Material: all items or information, regardless of the medium or maru1e1· in which it is generated, stored, or maintained (including, among othe1· 1hings, testimony, transcripts, and tangible things), that arc produced or generated in disclosures or responses to discovery in this matter. 2.6 E;{pert: a person with specialized knowledge or experience in a matter pertinent to the litigation who (l) has been retained by a Party or its counsel to serve as an expert witness or as a consultant in this action, (2) is not a past or current employee of a Party or of a Party's competitor, and (3) at the time of retention, is not anticipated to become an employee of a Party or of a Party's competitor. 2.7 "HIGHLY CONFIDP,NTIAL - ATTORNEYS' EYES ONLY0 Information or Items: extremely sensitive."Confidential Information or Items," disclosure of which to another Party or Non-Party would create a substantial risk of serious harm that could not be avoided by less restrictive means. 2.8 "HIGHLY CONFIDENTIAL SOURCE CODE" Information or Items: extremely sensitive "Confidential Information or Items" representing computer code and associated comments and revision histories, formulas, engineering specifications, or schematics that define 2 .,. Case Case6:18-cv-00080-ADA 1:17-cv-03473-JGK Document Document50-4 98 Filed Filed02/23/18 01/08/19 Page Page34ofof25 26 or otherwise describe iu detail the algoritl.uns or structure of software or hardware designs, disclosure of which to another Party or Non-Party would create a substantial risk of serious harm that could not be avoided by less restrictive means. 2.8a "HIGHLY CONFIDENTIAL- PATENT PROSECUTION BAR" Information or Items: "HIGHLY CONFIDENTIAL - ATfORNEYS' EYES ONL yn technical and/or source code information, including "HIGHLY CONFIDENTIAL- SOURCE CODE" information. 2.9 House Counsel: attorneys who are employees of a party to this action. House Counsel does not include Outside Counsel of Record or any other outside counsel. 2.10 Non-Party: any natural person, partnership, corporation, association> or other legal entity not named as a Party to this action. 2.11 Outside Counsel of Record: attorneys who are not employees of a party to this action but are retained to represent or advise a patty to this action and have appeared in this a~tion on behalf of that paiiy or are employed by a law firm which has appeared on behalf of that party. 2.12 Prujy: any pa'rty to this action, including all of its officers, directors, employee.~. consultants, retained experts, and Outside Counsel of Record (and their support staffs). 2.13 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this action. 2.14 Professional Vendorn: persons or entities that provide litigation support services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, aud organizing, storing, or retrieving ~ata in any form or medium) and their employees and subcontractors. 2.15 Protect~d Material: any Disclosure or Discovery Material that is designated as ''CONFIDENTIAL," "HIGHLY CONFIDENTIAL - AITORNEYS' EYES ONLY,'' "HIGHLY 3 Case Case6:18-cv-00080-ADA 1:17-cv-03473-JGK Document Document50-4 98 Filed Filed02/23/18 01/08/19 Page Page45ofof25 26 CONFIDENTIAL - SOURCE CODE/' and/or "HIGHLY CONFIDENTIAL - PATENT PROSECUTION BAR." 2.16 Receiving Party: a Pa1ty that receives Disclosure or Discovery Material from a Producing Party. 3. SCOPE The protections confened by this Stipulation and Order cover not only Protected Material (as defined above), but also (1) any information copied or extracted from Protected Material; (2) all copies, excerpts, summ.aries, or compilations of Protected Material; and (3) any tes!imony, conversations, or presentatiems by Parties or their Counsel that might reveal Protected Material. However, the protections conferred by this Stipulation and Order do not cover the following information: (a) any information that is in the public domain at the time of di~closure to a Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as a result of publication not involving a violation of this Order, includiug becoming pait of the p11blic record through trial or otherwise; and (b) any information known to the Receiving Party prior to the disclosure or obtained hy the Rcce.tving Party after the disclosure from a source who obtained the information lawfully and under no obligation of confidentiality to the Designating Party. However, if the accuracy of information is confirmed only through the review of Protected Material, then the information shall not be considered to be in the public domain. For example, unsubstantiated media speculations or rumors that are later confirmed to be accurate through access to Protected Material are not "public domain" informa~ion. ·such information is explicitly inclt1ded in the definition of "Protected Material" set forth in 2.15 above. Any use of Protected Material at trial shall be governed by a separate agreement or order. 4 Case Case6:18-cv-00080-ADA 1:17-cv-03473-JGK Document Document50-4 98 Filed Filed02/23/18 01/08/19 Page Page56ofof25 26 4. DURATION Even after final disposition of this litigation, the confidentiality obligations imposed by this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order othenvise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and defenses in this action, with or without prejudice; and (2) final judgment herein after the e::m~pletion and exhaustion of all appeals, reheal'ings, remands, trials, or reviews of this action, including the time limits for filing any motions or applications for extension of time pursimnt to ' applicable Jaw. 5. DESIGNATING PROTECTED MATERIAL S, l Exercise of Restraint and Care in Designating Material for Protection. Each Party or Non-Party that designates informatim1 or items for protection undei: this Order must take care. . to limit any such designation to specific material that qualifies under the appropriate standards. To the e){tent it is practical to do so, the Designating Party must designate for pmtectio11 only those parts of material, documents, items, or oral or written communications that qualify - so that other portions of the material, documents, items, or communications fpr which prntection is not warranted are not swept unjustifiably within the ambit of this Order. If it comes to a Designating Party's attention that information or items that it designated fo~ protection do not qualify for protection at all or do not qualify for the level of protection initially asserted, that Designating Party must promptly notify all other parties that it is withdrawing the mistaken designation. 5.2 Manner and Timing of Designations. E~ccpt as otherwise provided in this Order (see, e.g., second paragraph of section S.2(a) below)> or as otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 5 Case Case6:18-cv-00080-ADA 1:17-cv-03473-JGK Document Document50-4 98 Filed Filed02/23/18 01/08/19 Page Page67ofof25 26 designated before the matedal is disclosed or prodt1ced. Designation in conformity with this Order requires: (a) for information in documentary form (e.g., paper or electronic documents, but excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party affix the legend "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - ATfORNEYS' EYES ONLY" or "HIGHLY CONFIDENTIAL - SOURCE CODE" or "HIGHLY CONFIDENTIAL w _PATENr PROSECUTION BAR" to each page that contains protected material. (b) for testimony given in deposition or in other pretrial or trial proceedings, that. the Designating Party identify on the record or up to 21 days afterwards if that period is properly invoked, tharthe transcript shall be treated as "CONFIDENTIAL," "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" or "HIGHLY CONFIDENTIAL - SOURCE CODE or "HIGHLY CONFIDENTIAL- PATENT PROSECUTION BAR"." Parties shall give the other parties notic'e if they reasonably expect a deposition, ~earing or other proceeding to include Protected Material so that the other parties can ensure that only authorized individuals who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A) are present at those proceedings. The use of a document as an exhibit at a deposition shall not in any way affect its designation as "CONFIDENTIAL0 or "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY," or "HIGHLY CONFIDENTIAL - SOURCE CODE,, or "HIGHLY CONFIDENTIAL- PATENT PROSECUTION BAR." Transcripts containing Protected Material shall have an obvious legend on the title page that the trru:v;cript contains Protected Material, and the title page shall be followed by a list of all pages that have been designate~ as Protected Material and the level of protection being assc1ted by the Designating Party. The Designating Party shall inform the com1 reporter of these 6 Case Case6:18-cv-00080-ADA 1:17-cv-03473-JGK Document Document50-4 98 Filed Filed02/23/18 01/08/19 Page Page78ofof25 26 requirenwnts. Any transcript that is prepared before the expiration .of a 2 t ~day period for designation shall be treated dming that period as if it had been designated «HIGHLY CONFIDENTIAL. A TIORNEYS' EYES ONLY" in its entirety unless specific portio11s are designated "HIGHLY CONFIDENTIAL - PATENT PROSECUTION. BARu during the deposition, hearing or other proceeding, in which case those specific portions wlll be treated as "HIGHLY CONFIDENTIAL· PATENT PROSECUTION BAR. A.fter the expiration of that period or as of such earlier time that such transcript is designated, the transcript shall be treated only as actually desigl,lated. (c) for information produced in some form other than documentary and for an:}: other tangible it_ems, that the Producing Party affix in a prominent place on the exterior of the container or containers in which the information or item is stored the legend "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" or "HIGHLY CONFIDENTIAL - SOURCE CODE'' or "HI OHL Y CONFIDENTIAL • PATENT PROSECUTION BAR. If only a portion or portions ofthe information or item wa1·rant protection, the Producing Patty, to tl~e extent practicable, shall identify the protected portion(s) and specify the level of protection being asserted. 5.3 Inadvertent Failures to Desjgnat~. An inadvertent failure to designate qualified information or items does not waive the Designating Party's right to secure protection under Lb.is Order for such material. Upon correction of a designation, the Receiving Party must make all reasonable effo1is lo assure that the material is treated in accordance with the provisions of this Order. 6. CHALLENGING 'coNFIDENTIALITY DESIGNATION$ 6.1 Jiming of Challenges. Any Pmty or Non-Party may challenge a designation of 7 Case Case6:18-cv-00080-ADA 1:17-cv-03473-JGK Document Document50-4 98 Filed Filed02/23/18 01/08/19 Page Page89ofof25 26 confidentiality at any time. Unless a prompt challenge to a Designating Party's confidentiality designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic. burdens, or a significant disrnption or delay of the litigation, a Party does not waive its right to challenge a confidentiality designation by electing not to mount a challenge promptly after the original designation is disclosed. 6.2 Meet !ind Confer. The Challenging Parly shall initiate the dispute resolution process by providing written notice of each designation it i; challenging and describing the basis for each challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must recite that the challenge to confidentiality is being made in accordance with this specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in good faith and must begin the process by conferring directly (in voice to voice dialogue; other fom1s of con11nunicatipi1 are not sufficient) within 14 days of the date of service of notice. In conferring, the Challenging Party must explain the basis for its belief that the cortfiderttiality designation was not pro~er and must give the Designating Party an opport\mity to review the designated material, to reconsider the circumstances, and, if no change in designation is offered, to explain the basis for the chosen designation. A Challenging Party may proceed to the next stage of the challenge process only if it has engaged in this meei and confer process first or establishes that the Designating Party is unwilling to participate in the meet and confer process in a timely maMer. 63 J.udicial Interventio11. If the Parties cannot resolve a challenge without court interve11tion, the Designating Party shall file and serve a letter-motion for a pre-motion discovery conference to retain confidentiality within 21 days of the initial notice of challenge or within 14 days of the parties agreeing that the meet and confer process will not resolve their dispute, whichever is earlier. Each such motion niust be accompanied by~ competent declaration affirming 8. Case Case6:18-cv-00080-ADA 1:17-cv-03473-JGK Document Document50-4 98 Filed Filed 02/23/18 01/08/19 Page Page 910 ofof 2526 that the movaut has complied with the meet and confer requirements imposed in the preceding paragraph. The burden of persuasion in any such challenge proceeding shall be on the Designating Party. Frivolous challenge.'! and those made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on other parties) may expose the Challenging Party to sanctions. Unless the Designating Party has waived the confidentiality designation by failing to file a motion to retain confidentiality .as described above, all parties shall continue to ~fford the. material in questio~ the level of protection to which it is entitled under the Producing Party's designation until the court rules on the challenge. 7. ACCESS.TO AND USE OF PROTECTED MATER.JAL 7. I Basic PrinciQles. A Receiving Paity may use Protected Material that is disclosed or produced by an'other Party or by a Non-Party in connection with this case only for prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to the categories of persons and under the conditions described in this Order. When the litigation has been tem1inated, a Recei~ing Party must comply with the provisions of section lS below (FINAL DISPOSITION). Protected Material must be stored and maintained by a Receiving Party at a location and in a secure manner that ensures that access is limited Lo the persons nutlrorized under this Order. For the avoidance of doubt, to the extent that any one of Defendants in this litigation provides Protected Material under the terms of this Protective Order to Plaintiff, Plaintiff shall not share that material with the other Defendants in this litigation, absent express written pe1mission from tl~e producing Defendant. This Order does not co11fer any right to any one Defendant to access the, Protected Information of any other Defendant. 9 Case Case6:18-cv-00080-ADA 1:17-cv-03473-JGK Document Document50-4 98 Filed Filed02/23/18 01/08/19 Page Page10 11ofof25 26 7.2 Disclosure of"CONFIDENTIAL" Info1mation or Items. Unless otherwise ordered by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any information or item designated "CONFIDENTIAL" only to: (a) the Receiving Party's Outside Coun~el of Record in this action, as well as t employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the infonnation for this litigation; (b) the officers, directors, and employees (including. House Counsel) of the Receiving Party to whom dis~losure is reasonably necessary for this litigation and who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A); (c) Experts (as defined in thi:; Order) of the Receiving Patty to whom disclosure is reasonably necessary for this litigation and who have signed the "Acknowl~dgment and Agreement to Be Bound" (Exhibit A); (d) the c01.11i and its personnel; (e) court reporters and their staff, professional ji1ry or trial consultants including mock jurors who have signed a confidentiality agreement, and Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A); (f) during their depositions, witnesses in the action to whom disclosure is reasonably necessary, with the consent of the Designating Party or as ordered by the court. Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be separately bound l;>y the court reporter and may not be disclosed to anyone except as permitted under this Stipulated Protective Order; 10 Case Case6:18-cv-00080-ADA 1:17-cv-03473-JGK Document Document50-4 98 Filed Filed02/23/18 01/08/19 Page Page11 12ofof25 26 (g) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information. 7.3 Disclosure of "HIGHLY CONFIDENTIAL - ATIORNEYS' EYES ONLY" and "IIIGHL Y CONFIDENTIAL SOURCE CODE" or "HIGHLY CONFIDENTIAL - PATENT PROSECUTION BAR,, Information or Ttcms. Unless otherwise ordered by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any information or Item designated "HIGHLY CONFIDEJ\11'JAL - ATIORNEYS' EYES ONLY" or "HIGHLY CONFIDENTIAL - SOURCE CODE" or "HIGHLY CONFIDh'NTIAL • PATENT PROSECUTION BAR'' only to: (a) the Receiving Party's Outside Counsel of Record in this action, as well as employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the. information for this litigation; (b) Intentionally left blank. (c) Experts of the Receiving Pal'ty (1) to whom disclosure is reasonably necessary for this litigation, (2) who have signed the "Ackrtowledgment and Agreement to Be Bound" (Exhibit A), and (3) as to whom the procedures set forth in paragraph 7.4(a)(2), below, have been followed; (d) the cow1 and its personnel; (e) comi reporters and their staff, professional jury or trial consultants including mock jurors who have signed a confidentiality agreement, and Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have signed the "Acknowledgment and Agreement to De Bound" (Exhibit A), except that mock jurors shall not be given access to material designated "HIGHLY CONFIDENTIAL - SOURCE CODE"; and 11 Case Case6:18-cv-00080-ADA 1:17-cv-03473-JGK Document Document50-4 98 Filed Filed02/23/18 01/08/19 Page Page12 13ofof25 26 (t) the author or recipient of a document containing the information 'or a custodian or other person who otherwise possessed or knew the information. 7.4 Procedures for Approving or Objecting to Disclosure of "HIGHLY CONFIDENTIAL - ATI'ORNEYS' EYES ONLY" or ''HlGHLY CONFJDENTIAL - SOURCE CODE" or "HIGHLY CO:NFIDENTIAL- PATENT PROSECUTION BAR" Infonnation or Items to Experts. (a) Unless otherwise ordered by the court or agreed to in writing by the Deslgnating Party, a Party that seeks to disclose to an Expet1 (as defined in this Order) any information or item that has been designated uHIGHLY CONFIDENTIAL - AITORNEYS' EYES ONLY" er "HIGHLY CONFIDENTIAL - SOURCE CODE" or "HIGHLY CONFIDENTIAL - PATENT PROSECUTION BAR" pursuant to paragraph 7.3(c) first must make a written request to the Designating Patiy that (J) identifies the general categories of ''HIGHLY CONFIDENTIAL - AITORNEYS' EYES ONLY" or "HIGHLY CONFIDENTIAL - SOURCE CODEn or "HIGHLY COl\lFIDENTIAL - PATENT PROSECUTION BAR" information that the Receiving Party seeks permission to disclose to the Expert, (2) sets forth the full name of the Expert and th(} city and state of his or her primary residence, (3) attaches a copy of the Expmi's current resume, (4) identifies the Expert's current employer(s), (5) identifies each person or entity from whom the Expett has received compe~nsation or funding for work in his or her areas of expertise or to whom the expert has provided professional services, including it\ c01mection with a litigation, at any time during the preceding five years and the party to the litigation for whom such work was done, (6) identifies (by name and number of the case, filing date, ai1d location of comt) any litigatlon in ~onnection with which the Expert has offered expert testimony, including through a declaration, rep01i, or testimony at a deposition or trial, during the preceding five years, and (7) identifies eny 12 Case Case6:18-cv-00080-ADA 1:17-cv-03473-JGK Document Document50-4 98 Filed Filed02/23/18 01/08/19 Page Page13 14ofof25 26 patents or patent applications in which the Expert is identified as an inventor or applicant, is involved in prosecuting or maintaining, or has any pecuniary interest. With regard to the information sought through pmt (5) of this disclosure, if the Expert believes any ofthis infonuation is subject to a confidentiality obligation to a third party, then the Expert should provide whatever information the Expe1t believes can be disclosed without violating any confidentiality agreements, and the Pady seeking to disclose to the Expert shall be available to meet and confer with the Designating Party regarding any such engagement. (b) A Patty that makes a request and provides the information specified in t~e preceding respective parag~phs may disclose the subject Protected Material to the identified Expert unless, within 14 days of delivering the request, the Party receives a written objection from the Designating Party. Any such objection must set forth in detail the grounds on which it is based. (c) A,Party that receives a timely written objection must meet and confer with the Designating Party (tlU'ough direct voice to voice dialogue) to try to resolve the matter by agreement within seven days of the written objection. If no agl'eement is reached, the Party seeking to make the disclosure to the Expett must file a letter-motion for a pre~motion discovery conference seeking permission from the Court to do so. Any such motion must describe the circumstances with specificity. set forth in detail the reasons why the disclosure to the Expert is reasonably necessary, assess the risk of harm that the disclosure would eJttail, and suggl!st any additional means that could be used to reduce that risk. In addition, any such motion must be accompanied by a competent declaration describing the parties' efforts t? resolve the matter by agreement (Le., the extent and the content of the meet and confer discussions) and setting forth the reasons advanced by the Designating Party for its refusal to approve the disclosure. In any such proceeding, the Patty opposing disclosure to the Expert shall bear the burden 13 .. Case Case6:18-cv-00080-ADA 1:17-cv-03473-JGK Document Document50-4 98 Filed Filed02/23/18 01/08/19 Page Page14 15ofof25 26 of proving that the risk of harm that the disclosure would entail (unde1' the safeguards. proposed) outweighs the Receiving Partis need to disclose the Protected Material to its Expert. 8. PROSECUTION BAR Absent written consent from the Producing Party, any individual who receives access to "HIGHLY CONFIDENTIAL-PATENT PROSECUTION BAR" or "HIGHLY CQNFIDENTIAL-SOURCE CODE" information shall not be involved in the prose~ution of patents or patent applications r~lating to the subject matter of the patents-in-suit as well as the subjecrmatter of the informf!lion received designated as "HIGHLY CONFIDEN'DAL-PATENT PROSECUTION BAR," including without limitation the patents asserted in this action and any patent or application claiming priority to or otherwise related to the patents asserted in this action, before any foreign or domestic agency, including the United States Patent and Trademark Office 44 (the Patent Office"). For purposes of this paragraph, uprosecution" includes directly br indirectly drafting, amending, advising, or othenvise affecting the scope or maintenance of patent claims. Prosecution includes, for example, original prosecution, reis~t1e, and reexamination and other post- grant proceedings. To avoid any doubt, "prosecution" as used in this paragmph does not include representing a party challenging a patent before a domestic or foreign agency (including, but not limited to, a reissue protest, e:i: parfe reexamination, interparfes reexamination, post grant review, or inter partes review). This Prosecution Bar shall begin when access to "HIGHLY CONFIDENTIAL-PATENT PROSECUTION BAR,, information is first received by the affected individual and shall end eighteen (18) months after final termination of this action. Those individuals who have agreed not to participate in ?mending claim scope, however, are not subject to this proseculio11 bar for inter pa1'les review or other post~grant proceedings. 14 .. Case Case6:18-cv-00080-ADA 1:17-cv-03473-JGK Document Document50-4 98 Filed Filed02/23/18 01/08/19 Page Page15 16ofof25 26 9. SOURCE CODE (a) To the extent production of soutce code becomes necessary in this case, a Producing Party may designate source code as "HIGHLY CONFIDENTIAL ~ SOURCE CODE" if it comprises or includes confidential, proprietary or trade secret source code. (b) Protected Material designated as "HIGHLY CONFIDENTIAL-SOURCE CODE'1 shall be subject tQ all of the protections afforded to "HIGHLY CONFIDEN'FIAL ATTORNEYS' EYES ONLY" infumiation including the Prosecution Bar set forth in Paragraph 8, and may be disclosed only to the individuals to whom "HIGHLY CONFIDENTIAL -ATTORNEYS' EYES ONLY" infomiation may be disclosed, as set forth in Paragraphs 7.3 and 7.4. (c) Any source code produced in discovery shall be made available for inspection, it1 a format allowing it to be reasonably reviewed and searched, during nonnal business hours or at other mutually agreeable times, at an office of the Producing Party's counsel or another mutually agreed upon location. The computer containing source code will be made available upon reasonable notice to the producing party, which· shall not be less than 2 business days in aqvance of the requested inspection. The source code shall be made available for inspection on a secured computer in a secured room without Internet access or network access to other computers, and the Receiving Party shall not copy, remove, or othen:vise transfer any portion of the source code onto any recordable media or recordable device. The Producing Party may visually monitor the activities of the Receiving Party's representatives durihg any source code review, bµt only to ensure that there is no unauthorized recording, copying, or transmission of the source code. The computer containing source code will be made available upon reasonable J1otice to the Producing Party for depositions of individuals to whom "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" informution may be disclosed occurring at an office of the Producing Patty's 15 Case Case6:18-cv-00080-ADA 1:17-cv-03473-JGK Document Document50-4 98 Filed Filed02/23/18 01/08/19 Page Page16 17ofof25 26 counsel or another mutually agreed upon location. AU persons viewing Source Code shall sign on each day they view Source Code a log that will include the names of persons who enter the secured room to view the Source Code and wl1en they enter and depart. (d) The Receiving Pru1y may request paper copies of limited portions of source code that are reasonably necessary to attach to filings, pleadings, expert reports, or other papers, or for use as an exhibit at deposition or tlial, but shall not reque8t paper copies for the purposes of reviewing the source code other than electronically as set forth inparagraph (c) in the first instance. The Producing Party shall provide all such source code on non-copyable paper including bates numbers and lhe label "IIlGHLY CONFIDENTIAL - SOURCE CODE." The Producing Party may challenge the amount of source code requi:sted in hard copy form pursuant to the dispute resolution procedure and timeframes set f01th in Paragraph 6 whereby ~e Producing Party is the "Challenging Party" and the Receiving Party is the "Designatipg Party" for purposes of dispute resolution. In no case may the Receiving Party request more than 20 consecutive pages, or an aggregate of more than 300 pages, of Source Code during the duration of the case without prior written approval of the Producing Party. (e) The Receiving Party shall maintain a log of all paper copies of the Source Code. The fog shall include the names of the reviewers and/or recipients of paper copies and locations where the paper copies are stored. Upon one (1) day's advance notice to the Receiving Pm1y by the Producing Party, the Receiving Party shall provide a copy of this log to the Producing Party. The Receiving Party shall maintain all paper copies of any ptinted portions of the source code in a secured, locked area. Where the Court's local rules require paper filing of sealed documents, the Receiving Paity may not create electronic copies of the Source Code for purposes of such a filing. The Receiving Party may not create electronic copies ofthe Source Code for any other purpose. 16 Case Case6:18-cv-00080-ADA 1:17-cv-03473-JGK Document Document50-4 98 Filed Filed02/23/18 01/08/19 Page Page17 18ofof25 26 The Receiving Party shall only request additional paper copies if such additional copies are (1) necessary to attach to court filings, pleadings, or other papers (including a testifying expert's expert report), (2) necessary for deposition, or (3) necessary for trial. Any paper copies used during a deposition shall be retdeved by tl1e Producing Party at the end of each day. and must not be given to or left with a court reporter or any other individual. 10. PROTECTED MATERIAL SUBPOENAED OR ORDERED fjZODUCED IN OTHER LITIGATION If a Party is served with a subpoena or a court order issued in other litigation that compels disclosure of any information or items designated in this action as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - ATfORNEYS' EYES ONLY" or "HIGHLY CONFIDENTIAL - SOURCE CODE" or "HIGHLY CONFIDENTIAL - PATENT PROSECUTION BAR" that Pmty must: (a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order; (b) promptly notify in writing the party who caused the subpoena or order to issue in tb:e other litigation that some or all of the material covered by the subpoena or order is subject to this Protective Order. Such notification shall include a copy ofthis Stipulated Protective Order; and (c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating Pa1ty whose Protected Material may be affected. If the Designating Party timely seeks a protective order, the Party served with the subpoena or court order shall not produce any infonnation designated in this action as "C01'TFIDENTIAL" or "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" or «HIGHLY CONFIDENTIAL - SOURCE CODE" or "HIGHLY CONFIDENTIAL - PATEl\TT 17 Case Case6:18-cv-00080-ADA 1:17-cv-03473-JGK Document Document50-4 98 Filed Filed02/23/18 01/08/19 Page Page18 19ofof25 26 PROSECUTION BAR,, before a determination by the eourt from which the subpoena or order issued, unless the Party has obtained the Designating Party's permission. The Designating Party shall bear the burden and expense of seeking protection in that court of its confidential material and nothing in these provisions should be construed as authorizing or encouraging a Receivjng Party in this action to disobey a lawful directive from another court. 11. A NON-PARTY'S PROTECTED MATERJAJ;-.~_QUGHT TO BE PRODUCED IN THIS LITIGATION (a) The terms of this Order are applicable td infoqnation produced by a Non-Party in lhis action and designated as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL A'rfORNEYS' EYES ONLY" or ''HIGHLY CONFIDENTIAL SOURCE CODE" or "HIGHLY CONFIDENTIAL - PATENT PROSECUTION BAR". Suc;h information produced by Non-Parties in connection. with this litigation is protected by the remedies and relief provided by this Order. Nothing in these provisions should be construed as prohibiting a Non-Party from seeking additional protections. (b) In the event that a Party is required, by a valid discovery request, to produce a Non- Party's confidential information in its possession, and the Party is subject to an agreement with the Non-Party not to produce the Non-Party's confidential information, then the Party shall: 1. promptly notify in writing the· Requesting Party and the Non-Pa1ty that some or all of the information requested is subject to a confidentiality agreement with a Non Party; 2. promptly provide the Non-Party with a copy of the Stipulated Protective Order in this litigation, the relevant discovery request(s), and a reasonably specific description of the information requested; and 3. make the information requested available for inspection by the Non~Party. 18 Case Case6:18-cv-00080-ADA 1:17-cv-03473-JGK Document Document50-4 98 Filed Filed02/23/18 01/08/19 Page Page19 20ofof25 26 (c) If the Non-Pa11y fails to object or seek a protective order from this court within 14 days of receiving the notice and accompanying informati"on, th~e Receiving Patty may produce the Non-~arty's confidential infonnatiO!l responsive to the discovery request. If the Non-Party timely seeks a protective order, the Producing Party shall not produce any information in its possession or control that is subject to the confidentiality agreement with the Non-Party before a determination by the court. 12. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party learns that, by in.adve1tence or otherwise, it has disclosed Protected Material to any person or in any circumstance not authorized under this Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing the Designating Paiiy of the unauthorized disclosures, (b) use its best efforts to t·etrieve all unauthorized copies of the Protected Material, (c) inform the person or persons to whom unauthorized disclosures were made of all the terms of this Order, and (d) request such person or persons to execute the "Acknowledgment .and Agreement to Be Bound" that i's attached hereto as Ex:hfbit A. I 3. INADVERTENT PRODUC'l10N OF PRIVILEGED OR OTHER WISE PROTECTED MATERIAL When a Producing Party gives notice to Receiving Pmties that certain inadverten1ly produced material is subject to a claim of privilege or other protection, the ob~igations of the Receiving Parties are those set f01th in Federal Rule of Civil Procedme 26(b)(5)(B). Pursuant to Federal Rule of Evidence 502(d), the production of a privileged or:vork-product-protected document is not a waiver of privilege or protection from discovery in this case or in any other federal or state proceeding. For example, the mere production of privilege or work-product- protccted documents in this case as pa1t of a mass production is not itself a waiver in this case or 19 Case Case6:18-cv-00080-ADA 1:17-cv-03473-JGK Document Document50-4 98 Filed Filed02/23/18 01/08/19 Page Page20 21ofof25 26 any other federal or state proceeding, A Producing Party may assert privilege or protection over produced documents at any time by notifying the Receiving Patty in writing of the assertion of privilege or protection. This provision is not intended to modify whatever procedure may be established in an e-discovery order that provides for production without prior privilege review. 14. MISCELLANEOUS 14. l Right to Ft1rther Relief. Nothing in this Order abridges the right of any person to seek its modification by the court in the future. l 4.2 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. . 01· produ~ing information or item on any ground not addressed in this Stipulated Prptective Order. Similarly, no. any Pai1y waives a~y right to object on any ground to use in evidence of any of the material covered · by this Protective Order. 14.3 .!ix.port Control. The Protected Material disclosed by the Producing Party may contain tec1rnical data subject to export control laws and therefore the release of such technical data to foreign persons or nationals in the United States or elsewhere may be restricted. The Receiving Party shall take measures necessary to ensure compliance with applicable export control laws, including confirming that no unauthorized foreign person has access to such technical d::ita. No Protected Material may leave the territorial boundaries of the United States of America. Without limitation, this prohibition extends to Protected Information (including copies) in physical and electronic form. The viewing of Protected Information through electronic means outside the territ~dal limits of the United States of America is similarly prohibited. The testrictions contained within this paragraph 01ay be amended throtigh the express written consent of the Producing Party 20 Case Case6:18-cv-00080-ADA 1:17-cv-03473-JGK Document Document50-4 98 Filed Filed02/23/18 01/08/19 Page Page21 22ofof25 26 to the extent that such agreed to ptocedures conform with applicable export control laws and regulations. Nothing in this paragraph is intended to remove any obligation that may othervtise exist to produce documents currently located in a foreign country. 14.4 Filing J1otected Material. Without written permission from the Designating Party or a com1 order secured after approprinte notice to all interested persons, a Party may not file in the public record in this action any Protected Material, b\lt rather must seek to file unde1· seal any Protected Material in co1npliance with Local Civil Rule 5. 14.5 Privilege Logs. No party is required to identify ?n its respective privilege log any document or c01m11unication dated on or after the filing of the Complaint The parties shall exchange their respective privilege logs at a time to be agreed upon by the parties following the production of documents, or as otherwise ordered by the Couit. 15. FINAL DISPOSITION Within 60 days after the:final disposition of this action, as defined in paragraph 4, each Receiving Party must return ~11 Protected Material to the Producing Paity or destroy such material. As used in this subdivision, "all Protected Material" includes all copies, abstracts, compilations, summaries, and any other format reproducing or capturing any of the Protected Material. Whether the Protected Material is returned or destroyed, the Receiving Party mllst submit a written certification to the Produciflg Party (and, if not the same person or entity, to the Designating Party) by the 60-day deadline that (1) identifies (by category, where appropriate) all the Protected. Material that was returned or destroyed and (2) affirms that the Receiving Party has not retained any copies, abstracts, compilations, summaries or any other format reproducing or capturing any of the Protected Material. Notwithstanding this provision, Co1msel are entitled to retain an archival copy of all pleadings, motion papers, trial, deposition. and hearing transcripts. legal memoranda, 21 Case Case6:18-cv-00080-ADA 1:17-cv-03473-JGK Document Document50-4 98 Filed Filed02/23/18 01/08/19 Page Page22 23ofof25 26 correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant and expert work product, even if such materials contain Protected Material. Any such archival copies that contain or constitute Protected Material remain subject to this Protective Order as set forth in Section 4 (DURATl ON). SIGNED AND ENTERED this:J J day of February 2018. - tik, ()~ L, ~~. ~ re, ~;-, ~ ~-lt-r- ~~ 7J;, r1~ i/(a! tw-:::i-r;;;;; ' u?/)~­ &~rebf - .'D .,..) · 22 Case Case6:18-cv-00080-ADA 1:17-cv-03473-JGK Document Document50-4 98 Filed Filed02/23/18 01/08/19 Page Page23 24ofof25 26 n:. ' 7,';o I 8 Dated: February RUSS, AUGUST & KABAT Marc Fenster (CA SBN Email .111fenster@raklaw.com Benjall\in T. Wang (CA SBN 278712) Email: bwang@raklaw.com Arka D. Chatterjee (CA SBN 268546) Email: achatterjee@raklaw.com 12424 Wilshire Boulevard Twelfth Floor Los Angeles, California 90025 Telephone: (310) 826-7474 Facsimile: (310) 826-6991 Charles R. Macedo (NY Bar No. 2328318) Email: cmacedo@arelaw.com AMSTER, ROTHSTEIN & EBENSTEIN LLP 90 Park Avenue, 21 51 Floor New York, NY 10016 Telephone: (212) 336-8000 Facsimile: (212) 336-8001 Attorneys for Plaintiff Mirror Worlds Technologies, LLC 23 Case Case6:18-cv-00080-ADA 1:17-cv-03473-JGK Document Document50-4 98 Filed Filed02/23/18 01/08/19 Page Page24 25ofof25 26. ! Date: February 7, 2018 Heidi L. Keefe (CA 8960) Mark Weinstein (CA 193043) Dena Chen (CA 286452) Alexandra M. Leeper (CA 307310) Azadeh R. Morrison (CA 311046) 3175 Hanover Street Palo Alto, California 94304-1130 Phone: (650)843-5000 Facsimile: (650)849-7400 hkeefe@cooley.eom mweinslein@cooley.com clchen@cooley.com aleeper@cooley.com amorrison@cooley.com Phillip E. Mor~on (VA 71299, DC 1032243) 1299 Pennsylvania Ave., NW, Suite 700 Washington, DC 20004 Phone: (202) 842-7800 Facsimile: (202) 842-7899 pmorton@cooley.com Joseph Drayton (NY 287 5318) 1114 Avenue of the Americas New York, New York 10036-7798 Phone: (212) 479-6000 Facsimile: (212) 479-6275 jdrnyton@cooley.com Allorneysfor Defendant Facebook, Inc. 24 Case Case6:18-cv-00080-ADA 1:17-cv-03473-JGK Document Document50-4 98 Filed Filed02/23/18 01/08/19 Page Page25 26ofof25 26 EXHIBIT A ACK.i'\l'OWLEDGMENT AND AGREEMENT TO BE BOUND !, _____~· _ _ _ _ _ _ [print or type full name], of _ _ _ _ _ __ [print or type foll address], declare under penalty of perjury that I have read in its entirety and understand the Stipulated Protective Order that was issued by the United States District Court for the Southern District of New York in the case of Mirror Worlds Technologies, LLC v. Facebook, Inc., Civil Action No. 1:17-CV-3473 (JGK). I agree to comply with.and to be bound by all the terms of this Stipttlated Protective Order and I understand and acknowledge that failure to so comply could expose me to sanctions and punishment in the -nature of contempt. I solemnly promise that I will not disclose in any mmmer any info1mation or item that is subject to this Stipulated Protective Order to any person or entity except in strict compliance with the provisions of this Order. I further agree to submit to the jurisdiction of the United States District Court for the Southern District of New York for the purpose of enforcing the terms of this Stipulated Protective Order, even if such enforcement proceedings occur.after termination of this action. I hereby appoint • _ __ [print or type full name] of - - - - - - - - - - - - - - - - - [print or type full address and telephone number] as my New York l}gent for service of process in connection with this action or any proceedings related to enforcement of this Stipulated Protective Order. Date:----------------- City and State where sworn and s i g n e d: - - - - - - - - - - - - - - - Printed n a m e: - - - - - - - - - - - - - [printed name] Signature:--------------- [signature] 25