Uniloc 2017 LLC v. Microsoft Corporation
Filing
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FIRST AMENDED STIPULATED PROTECTIVE ORDER 33 by Magistrate Judge John D. Early. (see document for details) (hr)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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SOUTHERN DIVISION
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UNILOC 2017 LLC,
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Plaintiff,
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v.
MICROSOFT CORPORATION,
Defendant.
CASE NO. 8:18-CV-02053-AG (JDEx)
FIRST AMENDED STIPULATED
PROTECTIVE ORDER
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1.
PURPOSES AND LIMITS OF THIS ORDER
Discovery in this action is likely to involve confidential, proprietary, or
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private information requiring special protection from public disclosure and from
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use for any purpose other than this litigation. Thus, the Court enters this Protective
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Order. This Order does not confer blanket protections on all disclosures or
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responses to discovery, and the protection it gives from public disclosure and use
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extends only to the specific material entitled to confidential treatment under the
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applicable legal principles. This Order does not automatically authorize the filing
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under seal of material designated under this Order. Instead, the parties must comply
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with L.R. 79-5.1 if they seek to file anything under seal. This Order does not
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govern the use at trial of material designated under this Order.
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2.
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DESIGNATING PROTECTED MATERIAL
2.1 Over-Designation Prohibited. Any party or non-party who designates
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information or items for protection under this Order as “PROTECTED DATA,”
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“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY,”
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or “HIGHLY CONFIDENTIAL – SOURCE CODE” (a “designator”) must only
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designate specific material that qualifies under the appropriate standards. To the
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extent practicable, only those parts of documents, items, or oral or written
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communications that require protection shall be designated. Designations with a
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higher confidentiality level when a lower level would suffice are prohibited. Mass,
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indiscriminate, or routinized designations are prohibited. Unjustified designations
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expose the designator to sanctions, including the Court’s striking all confidentiality
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designations made by that designator. Designation under this Order is allowed only
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if the designation is necessary to protect material that, if disclosed to persons not
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authorized to view it, would cause competitive or other recognized harm. Material
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may not be designated if it has been made public, or if designation is otherwise
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unnecessary to protect a secrecy interest. If a designator learns that information or
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items that it designated for protection do not qualify for protection at all or do not
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qualify for the level of protection initially asserted, that designator must promptly
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notify all parties that it is withdrawing the mistaken designation.
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2.2 Manner and Timing of Designations. Designation under this Order
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requires the designator to affix the applicable legend (“PROTECTED DATA”,
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“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY,”
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or “HIGHLY CONFIDENTIAL – SOURCE CODE”) to each page that contains
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protected material. For testimony given in deposition or other proceeding, the
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designator shall specify all protected testimony and the level of protection being
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asserted. It may make that designation during the deposition or proceeding, or may
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invoke, on the record or by written notice to all parties on or before the next
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business day, a right to have up to 21 days from the deposition or proceeding to
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make its designation.
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2.2.1 A party or non-party that makes original documents or materials
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available for inspection need not designate them for protection until after the
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inspecting party has identified which material it would like copied and
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produced. During the inspection and before the designation, all material shall
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be treated as HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY.
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After the inspecting party has identified the documents it wants copied and
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produced, the producing party must designate the documents, or portions
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thereof, that qualify for protection under this Order.
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2.2.2 Parties shall give advance notice if they expect a deposition or
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other proceeding to include designated material so that the other parties can
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ensure that only authorized individuals are present at those proceedings when
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such material is disclosed or used. The use of a document as an exhibit at a
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deposition shall not in any way affect its designation. Transcripts containing
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designated material shall have a legend on the title page noting the presence
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of designated material, and the title page shall be followed by a list of all
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pages (including line numbers as appropriate) that have been designated, and
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the level of protection being asserted. The designator shall inform the court
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reporter of these requirements. Any transcript that is prepared before the
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expiration of the 21-day period for designation shall be treated during that
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period as if it had been designated HIGHLY CONFIDENTIAL –
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ATTORNEY EYES ONLY unless otherwise agreed. After the expiration of
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the 21-day period, the transcript shall be treated only as actually designated.
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2.3
Inadvertent Failures to Designate. An inadvertent failure to
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designate does not, standing alone, waive protection under this Order. Upon timely
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assertion or correction of a designation, all recipients must make reasonable efforts
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to ensure that the material is treated according to this Order.
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3.
CHALLENGING CONFIDENTIALITY DESIGNATIONS
All challenges to confidentiality designations shall proceed under L.R. 37-1
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through L.R. 37-4.
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4.
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ACCESS TO DESIGNATED MATERIAL
4.1
Basic Principles. A receiving party may use designated material only
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for this litigation. Designated material may be disclosed only to the categories of
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persons and under the conditions described in this Order. Designated material must
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be stored and maintained by a receiving party at a location in the United States and
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in a secure manner that ensures that access is limited to the persons authorized
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under this Order. Designated material must not be transported by any recipient to
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any location outside the United States.
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4.2
Disclosure of CONFIDENTIAL Material Without Further
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Approval. Unless otherwise ordered by the Court or permitted in writing by the
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designator, a receiving party may disclose any material designated
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CONFIDENTIAL only to citizens or permanent residents of the United States that
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are one of the following:
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4.2.1 The receiving party’s outside counsel of record in this action
and employees of outside counsel of record to whom disclosure is reasonably
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necessary;
4.2.2 Three (3) officers, directors, and employees of the receiving
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party to whom disclosure is reasonably necessary, and who have signed the
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Agreement to Be Bound (Exhibit A);
4.2.3 Experts retained by the receiving party’s outside counsel of
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record to whom disclosure is reasonably necessary, and who have signed the
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Agreement to Be Bound (Exhibit A);
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4.2.4 The Court and its personnel;
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4.2.5 Outside court reporters and their staff, professional jury or trial
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consultants (as well as independent mock jurors during the course of a mock
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jury exercise), and professional vendors to whom disclosure is reasonably
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necessary, and who have signed the Agreement to Be Bound (Exhibit A);
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4.2.6 During their depositions, witnesses in the action to whom
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disclosure is reasonably necessary and who have signed the Agreement to Be
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Bound (Exhibit A); and
4.2.7 The author or recipient of a document containing the material, or
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a custodian or other person who otherwise possessed or knew the
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information.
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4.3
Disclosure of HIGHLY CONFIDENTIAL – ATTORNEY EYES
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ONLY and HIGHLY CONFIDENTIAL – SOURCE CODE Material Without
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Further Approval. Unless permitted in writing by the designator, a receiving party
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may disclose material designated HIGHLY CONFIDENTIAL – ATTORNEY
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EYES ONLY or HIGHLY CONFIDENTIAL – SOURCE CODE without further
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approval only to citizens or permanent residents of the United States that are one of
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the following:
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4.3.1 The receiving party’s outside counsel of record in this action
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and employees of outside counsel of record to whom it is reasonably
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necessary to disclose the information;
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4.3.2 The Court and its personnel;
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4.3.3 Outside court reporters and their staff, professional jury or trial
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consultants (as well as independent mock jurors during the course of a mock
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jury exercise), and professional vendors to whom disclosure is reasonably
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necessary, and who have signed the Agreement to Be Bound (Exhibit A); and
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4.3.4 The author or recipient of a document containing the material, or
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a custodian or other person who otherwise possessed or knew the
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information.
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4.4
Procedures for Approving or Objecting to Disclosure of HIGHLY
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CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY
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CONFIDENTIAL – SOURCE CODE Material to In-House Counsel or
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Experts. Unless agreed to in writing by the designator:
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4.4.2 A party seeking to disclose to an expert retained by outside
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counsel of record any information or item that has been designated HIGHLY
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CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY
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CONFIDENTIAL – SOURCE CODE must first make a written request to
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the designator that (1) identifies the general categories of HIGHLY
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CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY
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CONFIDENTIAL – SOURCE CODE information that the receiving party
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seeks permission to disclose to the expert, (2) sets forth the full name of the
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expert and the city and state of his or her primary residence, (3) attaches a
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copy of the expert’s current resume, (4) identifies the expert’s current
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employer(s), (5) identifies each person or entity from whom the expert has
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received compensation or funding for work in his or her areas of expertise
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(including in connection with litigation) in the past five years, (6) identifies
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(by name and number of the case, filing date, and location of court) any
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litigation where the expert has offered expert testimony, including by
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declaration, report, or testimony at deposition or trial, in the past five years;
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and (7) identifies the general subject matter of all unpublished patent
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applications naming that individual as an inventor. If the expert believes any
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of this information at (4) - (7) is subject to a confidentiality obligation to a
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third party, then the expert should provide whatever information the expert
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believes can be disclosed without violating any confidentiality agreements,
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and the party seeking to disclose the information to the expert shall be
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available to meet and confer with the designator regarding any such
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confidentiality obligations.
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4.4.3 A party that makes a request and provides the information
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specified in paragraphs 4.4.1 or 4.4.2 may disclose the designated material to
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the identified in-house counsel or expert unless, within seven days of
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delivering the request, the party receives a written objection from the
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designator providing detailed grounds for the objection.
4.4.4 All challenges to objections from the designator shall proceed
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under L.R. 37-1 through L.R. 37-4.
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5.
SOURCE CODE
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5.1 Designation of Source Code. If production of source code is necessary,
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a party may designate it as HIGHLY CONFIDENTIAL – SOURCE CODE if it is,
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or includes, confidential, proprietary, or trade secret source code.
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5.2 Location and Supervision of Inspection. Any HIGHLY
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CONFIDENTIAL – SOURCE CODE produced in discovery shall be made
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available for inspection, in a format allowing it to be reasonably reviewed and
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searched, during normal business hours or at other mutually agreeable times, at an
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office of the designating party’s counsel or another mutually agreeable location.
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Once a designating party makes available its Source Code, the inspecting party
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shall provide notice of its intent to review that Source Code at least seven (7)
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business days in advance of the initial inspection, and three (3) business days in
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advance of any subsequent inspection. The source code shall be made available for
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inspection on a secured, “stand-alone” computer (a computer that is not linked to
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any network, including a local area network “LAN”, an intranet, or the Internet) in
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a secured room, and the inspecting party shall not copy, remove, or otherwise
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transfer any portion of the source code onto any recordable media or recordable
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device. No recordable media, recordable devices, computers, cell phones, or other
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electronic devices may be brought into the secured room, but handwritten notes
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may be taken in the secured room, so long as those handwritten notes do not copy
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verbatim any lines of the Source Code. The designator may visually monitor the
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activities of the inspecting party’s representatives during any source code review,
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but only to ensure that there is no unauthorized recording, copying, or transmission
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of the source code. The inspecting party shall make reasonable efforts to restrict its
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requests for such access to the stand-alone computer(s) to normal business hours,
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which for purposes of this paragraph shall be 9:00 a.m. through 6:00 p.m. local
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time. All persons who will review source code on behalf of a receiving party,
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including members of the receiving party’s law firm, shall be identified in writing
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to the producing party at least 48 hours in advance of the first time that such person
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reviews such source code. Such identification shall be in addition to any other
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disclosure required under this Order.
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5.3 Paper Copies of Source Code Excerpts. The inspecting party may
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request paper copies of limited portions of source code not to exceed 250 pages for
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any one accused product, and with no contiguous block greater than 35 pages, that
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are reasonably necessary for the preparation of court filings, pleadings, expert
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reports, other papers, or for deposition or trial. The receiving party may request to
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print additional pages beyond the aforementioned limits; the parties will meet and
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confer in good faith within three (3) business days regarding such a request, and
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such a request will not be unreasonably denied. If the producing party does not
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agree to the request of the receiving party, the producing party will not object to the
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receiving party’s request for expedited briefing regarding the producing party’s
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denial of the request. The designator shall provide all such source code in paper
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form, including Bates numbers and the label “HIGHLY CONFIDENTIAL –
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SOURCE CODE.” The inspecting party shall maintain a log of all paper copies of
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the source code including the names of the custodian(s) or location(s) where the
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paper copies are store when not in use. No more than a total of (5) individuals
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identified by the receiving party shall have access to the printed portions of source
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code (except insofar as such code appears in any court filing or expert report). The
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inspecting party shall provide a copy of this log to the producing party within seven
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(7) days of any request by the producing party.
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5.4 Access Record. The inspecting party shall maintain a record of any
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individual who has inspected any portion of the source code in electronic or paper
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form, and shall maintain all paper copies of any printed portions of the source code
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in a secured, locked area. The inspecting party shall not convert any of the
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information contained in the paper copies into any electronic format other than for
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the preparation of a pleading, exhibit, expert report, discovery document, deposition
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transcript, or other Court document. Any paper copies used during a deposition
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shall be retrieved at the end of each day and must not be left with a court reporter or
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any other unauthorized individual.
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5.5 Transfer of Source Code. The producing party will make printed paper
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copies of its source code available for pick-up via secure and reliable hand carry at
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the location where the source code was inspected. After taking possession of the
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paper copies of source code, the receiving party can only transport the paper copies
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of source code via secure and reliable hand carry, except that the receiving party
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may transmit paper copies of the source code to other individuals at the receiving
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party via Federal Express only if necessary and only if 1) the paper copies of the
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source code are transported overnight on a day when it is certain that an individual
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of the receiving party will be at the receiving address to receive the package at the
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time of delivery; 2) signature is required for receipt of the package; 3) the tracking
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number is provided to the producing party, 4) the receiving party confirms arrival
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of the package and its contents upon receipt, and 5) the producing party is notified
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if the package does not arrive as expected and scheduled. Paper copies of source
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code transmitted in a single package should never exceed 35 pages, and source code
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paper copies may not be transported or transmitted electronically over a network of
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any kind or the Internet at any time.
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6.
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HANDLING OF PROTECTED DATA
6.1 Protected Data. “Protected Data”: refers to any information that a party
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or non-party reasonably believes to be subject to federal, state or foreign Data
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Protection Laws or other privacy obligations. Protected Data constitutes highly
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sensitive materials requiring special protection. Examples of such Data Protection
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Laws include, without limitation, The Gramm-Leach-Biley Act, 15 U.S.C. § 6801
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et seq. (financial information); The Health Insurance Portability and Accountability
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Act (“HIPAA”) and the regulations thereunder, 45 CFR Part 160 and Subparts A
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and E of Part 164 (medical information); Regulation (EU) 2016/679 Of the
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European Parliament and of the Council of 27 April 2016 on the Protection of
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Natural Persons with Regard to the Processing of Personal Data and on the Free
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Movement of Such Data, also known as the General Data Protection Regulation
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(“GDPR”).
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6.2 Disclosure of Protected Data. Unless otherwise ordered by the court or
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permitted in writing by the designating party, a receiving party may disclose any
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information or item designated “PROTECTED DATA” only to certain groups of
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individuals that can receive HIGHLY CONFIDENTIAL – ATTORNEY EYES
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ONLY materials, as indicated in Section 4.3 herein.
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6.3 The parties agree that productions of Protected Data Information may
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require additional safeguards pursuant to Federal, State or foreign statutes,
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regulations or privacy obligations and will meet and confer to implement these
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safeguards if and when needed.
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7.
PROSECUTION BAR
Absent written consent from the designator, any individual who receives
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access to HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY
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CONFIDENTIAL – SOURCE CODE information shall not be involved in the
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prosecution of patents or patent applications concerning the field of the invention of
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the patents-in-suit for the receiving party or its acquirer, successor, predecessor, or
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other affiliate during the pendency of this action and for one year after its
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conclusion, including any appeals. “Prosecution” means drafting, amending,
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advising on the content of, or otherwise affecting the scope or content of patent
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claims or specifications. These prohibitions shall not preclude counsel from
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participating in reexamination or inter partes review proceedings to challenge or
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defend the validity of any patent, but counsel may not participate in the formulation
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or drafting of amended claims in any such proceedings.
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8.
PROTECTED MATERIAL SUBPOENAED OR ORDERED
PRODUCED IN OTHER LITIGATION
8.1 Subpoenas and Court Orders. This Order in no way excuses non-
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compliance with a lawful subpoena or court order. The purpose of the duties
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described in this section is to alert the interested parties to the existence of this
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Order and to give the designator an opportunity to protect its confidentiality
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interests in the court where the subpoena or order issued.
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8.2 Notification Requirement. If a party is served with a subpoena or a
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court order issued in other litigation that compels disclosure of any information or
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items designated in this action as PROTECTED DATA, CONFIDENTIAL,
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HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY, or HIGHLY
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CONFIDENTIAL – SOURCE CODE, that party must:
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8.2.1 Promptly notify the designator in writing. Such notification shall
include a copy of the subpoena or court order;
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8.2.2 Promptly notify in writing the party who caused the subpoena or
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order to issue in the other litigation that some or all of the material covered
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by the subpoena or order is subject to this Order. Such notification shall
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include a copy of this Order; and
8.2.3 Cooperate with all reasonable procedures sought by the
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designator whose material may be affected.
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8.3 Wait For Resolution of Protective Order. If the designator timely
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seeks a protective order, the party served with the subpoena or court order shall not
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produce any information designated in this action as PROTECTED DATA,
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CONFIDENTIAL, HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY or
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HIGHLY CONFIDENTIAL – SOURCE CODE before a determination by the court
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where the subpoena or order issued, unless the party has obtained the designator’s
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permission. The designator shall bear the burden and expense of seeking protection
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of its confidential material in that court.
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9.
UNAUTHORIZED DISCLOSURE OF DESIGNATED MATERIAL
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If a receiving party learns that, by inadvertence or otherwise, it has disclosed
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designated material to any person or in any circumstance not authorized under this
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Order, it must immediately (1) notify in writing the designator of the unauthorized
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disclosures, (2) use its best efforts to retrieve all unauthorized copies of the
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designated material, (3) inform the person or persons to whom unauthorized
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disclosures were made of all the terms of this Order, and (4) use reasonable efforts
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to have such person or persons execute the Agreement to Be Bound (Exhibit A).
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10.
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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL
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Nothing in this Order shall require the production of documents, information
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or other material that a Party contends is protected from disclosure by the attorney-
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client privilege, the work product doctrine, or other privilege, doctrine or immunity.
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When a producing party gives notice that certain inadvertently produced material is
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subject to a claim of privilege or other protection, the obligations of the receiving
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parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This
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provision is not intended to modify whatever procedure may be established in an e-
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discovery order that provides for production without prior privilege review pursuant
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to Federal Rule of Evidence 502(d) and (e).
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11.
FILING UNDER SEAL
Without written permission from the designator or a Court order, a party may
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not file in the public record in this action any designated material. A party seeking
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to file under seal any designated material must comply with L.R. 79-5.1. Filings
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may be made under seal only pursuant to a court order authorizing the sealing of the
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specific material at issue. The fact that a document has been designated under this
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Order is insufficient to justify filing under seal. Instead, parties must explain the
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basis for confidentiality of each document sought to be filed under seal. Because a
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party other than the designator will often be seeking to file designated material,
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cooperation between the parties in preparing, and in reducing the number and extent
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of, requests for under seal filing is essential. If a receiving party’s request to file
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designated material under seal pursuant to L.R. 79-5.1 is denied by the Court, then
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the receiving party may file the material in the public record unless (1) the
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designator seeks reconsideration within four days of the denial, or (2) as otherwise
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instructed by the Court.
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12.
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FINAL DISPOSITION
Within 30 days after the final disposition of this action, each party shall
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return all designated material to the designator or destroy such material, including
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all copies, abstracts, compilations, summaries, and any other format reproducing or
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capturing any designated material. The receiving party must submit a written
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certification to the designator by the 30-day deadline that (1) identifies (by
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category, where appropriate) all the designated material that was returned or
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destroyed, and (2) affirms that the receiving party has not retained any copies,
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abstracts, compilations, summaries, or any other format reproducing or capturing
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any of the designated material. This provision shall not prevent outside counsel
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from retaining an archival copy of all pleadings, motion papers, trial, deposition,
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and hearing transcripts, legal memoranda, correspondence, deposition and trial
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exhibits, expert reports, undisclosed attorney work product, and undisclosed
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consultant and expert work product, even if such materials contain designated
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material. Any such archival copies remain subject to this Order.
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Dated: February 5, 2019
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/s/ M. Elizabeth Day
Attorneys for Plaintiff
Dated: February 5, 2019
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/s/ Aamir Kazi
Aamir Kazi
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Attorney for Defendant
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IT IS SO ORDERED.
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DATED: February 05, 2019
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JOHN D. EARLY
United States Magistrate Judge
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EXHIBIT A
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AGREEMENT TO BE BOUND
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I, _____________________________ [print or type full name], of
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_________________ [print or type full address], declare under penalty of perjury
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that I have read in its entirety and understand the Protective Order that was issued
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by the United States District Court for the Central District of California in Uniloc
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2017 LLC v. Microsoft Corporation, Case No. 8:18-cv-02053-AG-JDE, on
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February 5, 2019. I agree to comply with and to be bound by all the terms of this
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Protective Order, and I understand and acknowledge that failure to so comply could
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expose me to sanctions and punishment for contempt. I solemnly promise that I will
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not disclose in any manner any information or item that is subject to this Protective
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Order to any person or entity except in strict compliance with this Order.
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I further agree to submit to the jurisdiction of the United States District Court
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for the Central District of California for the purpose of enforcing this Order, even if
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such enforcement proceedings occur after termination of this action.
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I hereby appoint __________________________ [print or type full name] of
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_______________________________________ [print or type full address and
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telephone number] as my California agent for service of process in connection with
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this action or any proceedings related to enforcement of this Order.
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Date: ___________________________
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City and State where sworn and signed: _________________________________
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Printed name: ____________________
[printed name]
Signature: _______________________
[signature]
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