Apple Inc. v. Samsung Electronics Co. Ltd. et al

Filing 887

Declaration of Mia Mazza In Support Of Apples Administrative Motion For Clarification Regarding April 12 Order filed byApple Inc.. (Attachments: #1 Exhibit 1, #2 Exhibit 2, #3 Exhibit 3, #4 Exhibit 4, #5 Exhibit 5, #6 Exhibit 6, #7 Exhibit 7, #8 Exhibit 8, #9 Exhibit 9, #10 Exhibit 10, #11 Exhibit 11, #12 Exhibit 12, #13 Exhibit 13, #14 Exhibit 14, #15 Exhibit 15, #16 Exhibit 16, #17 Exhibit 17, #18 Exhibit 18, #19 Exhibit 19, #20 Exhibit 20, #21 Exhibit 21, #22 Exhibit 22, #23 Exhibit 23, #24 Exhibit 24)(Tucher, Alison) (Filed on 4/26/2012)

Exhibit 5

UNITED STATES INTERNATIONAL TRADE COMMISSION
Washington, D.C.

In the Matter of
CERTAIN WIRELESS COMMUNICATION
DEVICES, PORTABLE MUSIC AND
DATA PROCESSING DEVICES,
COMPUTERS AND COMPONENTS
THEREOF

Inv. No. 337-TA-745

Order No.1: Protective Order
WHEREAS, documents and information may be sought, produced or exhibited by and
among the parties to the above captioned proceeding, which materials relate to trade secrets or
other confidential research, development or commercial information, as such terms are used in
the Commission's Rules, 19 C.F.R. Section 21O.34(a)(7),
IT IS HEREBY ORDERED THAT:
1. Confidential business information is information which has not been made public and
which concerns or relates to the trade secrets, processes, operations, style of work, or apparatus,
or to the production, sales, shipments, purchases, transfers, identification of customers,
inventories, amount or source of any income, profits, losses, or expenditures of any person, firm,
partnership, corporation, or other organization, the disclosure of which information is likely to
have the effect of either (1) impairing the Commission's ability to obtain such information as is
necessary to perform its statutory functions, or (2) causing substantial harm to the competitive
position of the person, firm, partnership, corporation, or other organization from which the
information was obtained, unless the Commission is required by law to disclose such
information.

2. Any information submitted, either voluntarily or pursuant to order, in this
investigation, which is asserted by a supplier to contain or constitute confidential business
information shall be so designated by such supplier in writing, or orally at a deposition,
conference or hearing, and shall be segregated from other information being submitted.
Documents shall be clearly and prominently marked on their face with the legend: "[ supplier's
name] CONFIDENTIAL BUSINESS INFORMATION, SUBJECT TO PROTECTIVE
ORDER," or a comparable notice. Information obtained during discovery and asserted by the
supplier to be confidential under this order will be deemed to be confidential unless the
administrative law judge or the Commission rules that it is not. When such information is made
part of a pleading, or is offered into the evidentiary record, the party offering it must state the
basis for its claimed confidentiality. Confidential information whether submitted in writing or in
oral testimony shall be disclosed at a hearing only on the in camera record and shall not be made
part of the public record of this proceeding. The administrative law judge or the Commission
may determine that information alleged to be confidential is not confidential, or that its
disclosure is necessary for the proper disposition of the proceeding, at any time before, during or
after the close of the hearing herein. If such a determination is made by the administrative law
judge, opportunity shall be provided to the supplier of such information to argue its
confidentiality, prior to the time that such ruling becomes final.
3. In the absence of written permission from the supplier or an order by the Commission
or the administrative law judge, any confidential documents or business information submitted in
accordance with the provisions of paragraph 2 above shall not be disclosed to any person other
than: (i) outside counsel for parties to this investigation, including necessary secretarial and

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clerical personnel assisting such counsel, (ii) qualified persons taking testimony involving such
documents or information and necessary stenographic and clerical personnel thereof, (iii)
technical experts and their staff who are employed by outside counsel under (i) above for the
purposes of this litigation (unless they are otherwise employed by, consultants to, or otherwise
affiliated with a non-governmental party, or are employees of any domestic or foreign
manufacturer, wholesaler, retailer, or distributor of wireless communication devices, portable
music and data processing devices, computers and components thereof, which are the subj ect of
this investigation), and (iv) the Commission, the administrative law judge, the Commission staff,
and personnel of any governmental agency as authorized by the Commission. However see
Commission rule 210.5 (b) which conforms to 19 U.S.C. § 1337(n)(2), which clarifies the list of
government officers and employees who may have access to confidential business information,
and (c) which alerts suppliers to the possibility that confidential business information may be
transmitted to a federal district court, subject to such protective order as the district court
determines necessary. This result might occur in a limited class of cases because of 28 U.S.C. §
1659. Past Commission practice has been to permit the transfer of confidential business
information to another court only with permission of the supplier of the information. Particularly
where the supplier is a third party who is involved in neither the Commission investigation nor
the district court case, it is important that the supplier be made aware that treatment of
confidential information would be governed by the district court's protective order and not that
of the Commission following transmittal of the record under this provision. See also
Commission rule 210.39 which outlines the circumstances in which the Commission's record,
including the in camera record, may be transmitted to a federal district court, subject to such

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protective order as the district court determines necessary. In addition, referring to Commission
Administrative Order No. 97-06, dated February 4, 1997, information submitted under this
Protective Order may be disclosed to technical contract personnel who are acting in the capacity
of Commission employees, for developing or maintaining the records of this investigation or
related proceedings, or in internal audits and investigations relating to the programs and
operations of the Commission pursuant to 5 U.S.C. Appendix 3. Any contract personnel will
sign appropriate non-disclosure agreements. 1 Where the supplier of information under this order
is a third party who is not involved in the Commission investigation, it is important that the
supplier be made aware of the disclosure of such information to contract personnel by being
provided a copy of the protective order.
4. Confidential business information submitted in accordance with the provisions of
paragraph 2 above shall not be made available to any person designated in paragraph 3(i) and (iii)
unless he or she shall have first read this order and shall have agreed, by letter filed with the
Secretary of this Commission (letter of acknowledgment): (i) to be bound by the terms thereof;
(ii) not to reveal such confidential business information to anyone other than another person
designated in paragraph 3; and (iii) to utilize such confidential business information solely for
purposes of this investigation. Such letter shall also acknowledge that the signatory(ies) has
(have) read the order. Such letter shall further state which parties the person filing the letter is
involved with and shall state in what capacity he or she is a signatory to the Protective Order
(~,

as an attorney under Paragraph 3(i) or technical expert under Paragraph 3(iii) and, in the

1 A supplier of confidential business information may request that the administrative law
judge identify said contract personnel.

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case of an attorney, in what jurisdictions he or she is admitted to practice. Each attorney seeking
access to confidential business information shall sign such letter individually, but clerical and
support personnel (including law clerks and paralegals) of that attorney need not sign. All letters
of acknowledgment of this Protective Order shall be served on all non-parties who have
theretofore submitted confidential business information in accordance with the provisions of
paragraph 2, above.
5. Confidential business information obtained in the Commission proceeding may be
used with the consent of the supplier in a parallel district court proceeding under a protective
order issued by the district court without losing its confidential status under the protective order
in this proceeding as long as the information is not made public in the district court proceeding or
by someone who obtains the information from that source or by anyone else.
6. Confidential business information furnished by a supplier may lose its protection
under this order if it is disseminated to anyone not authorized to see it either by this protective
order or by a protective order issued by a district court in a parallel proceeding protecting
confidential business information obtained by the parties under the Commission's protective
order. Information obtained pursuant to the Commission's protective order, however, may be
produced to the district court under the district court protective order only with the consent of the
suppliers of that information.
7. If the Commission or the administrative law judge orders, or if the supplier and all
parties to the investigation agree, that access to, or dissemination of, information submitted as
confidential business information shall be made to persons not included in paragraphs 3, 5 or 6
above, such matter shall only be accessible to, or disseminated to, such persons based on the

5

conditions pertaining to, and obligations arising from, this order, and such persons shall be
considered subject to it unless the Commission or the administrative law judge finds that the
information is not confidential business information as defined in paragraph 1 hereof.
8. Any confidential business information submitted to the Commission or the
administrative law judge in connection with a motion or other proceeding within the purview of
this investigation shall be submitted under a designation that confidential information is
contained or attached therein, pursuant to paragraph 2 above. When any confidential business
information submitted in accordance with paragraph 2 above is included in an authorized
transcript of a deposition or exhibits thereto, arrangements shall be made with the court reporter
taking the deposition to bind such confidential portions and separately label them "[supplier's
name], CONFIDENTIAL BUSINESS INFORMATION, SUBJECT TO PROTECTIVE
ORDER." Before a court reporter receives any such information, he or she shall have first read
this order and shall have agreed in writing to be bound by the terms thereof. Alternatively, he or
she shall sign the agreement included as Attachment A hereto. Copies of each such signed
agreement shall be provided to the supplier of such confidential business information and to the
Secretary of the Commission.
9. The restrictions upon, and obligations accruing to, persons who become subject to this
order shall not apply to any information submitted in accordance with paragraph 2 above to
which the person asserting the confidential status thereof agrees in writing, or the Commission or
the administrative law judge rules, after proper notice and hearing, was publicly known at the
time it was supplied to the receiving party or has since become publicly known through no fault
of the receiving party.

6

10. The administrative law judge acknowledges that any document or information
submitted as confidential business information pursuant to paragraph 2 above is to be treated as
such within the meaning of5 U.S.C. § 522(b)(4) and 18 U.S.c. § 1905, subject to a challenge by
any party pursuant to paragraph 12 below or to a final ruling by the Commission, the
administrative law judge or its Freedom of Information Act Officer to the contrary, or by appeal
of such a ruling, interlocutory or otherwise.
11. If no determination has been made by the administrative law judge or the
Commission that the information designated as confidential by the submitter is not confidential,
the persons who are recipients of such information shall take all necessary and proper steps to
preserve the confidentiality of, and to protect each supplier's rights with respect to, any
confidential business information designated by the supplier in accordance with paragraph 2
above.
12. The supplier of any confidential information is hereby notified that Commission
regulations 19 C.F.R. § 20 1.19(c) through (e) generally require that the Commission will give
notice to a submitter of confidential information upon the Commission's receipt of an FOIA
request.
13. The supplier of any confidential information is put on notice that Commission rule
210.20 provides that only a party may move to declassify and that only then are such motions,
whether brought at any time during or after the conclusion of an investigation, addressed to and
ruled upon by an administrative law judge. Other requests to declassify made by non-parties,
such as an FOIA request, will not be referred to the administrative law judge for consideration
under the protective order.

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14. If a party to this order who is a recipient of any business information designated as
confidential and submitted in accordance with paragraph 2, disagrees with respect to such a
designation, in full or in part, it shall notify the supplier in writing, and they will thereupon
confer as to the status of the subject information proffered within the context of this order. If
prior to, or at the time of, such a conference, the supplier withdraws its designation of such
information as being subject to this order, but nonetheless submits such information for purposes
of the investigation, such supplier shall express the withdrawal in writing and shall serve such
withdrawal upon all parties, the administrative law judge, and the Commission investigative
attorney. If the recipient and supplier are unable to concur upon the status of the subject
information submitted as confidential business information within ten days from the date of
notification of such disagreement, any party to this order may raise the issue of the designation of
such a status to the Commission or to the administrative law judge, and the Commission or the
administrative law judge may raise the issue of designation of the confidential status without any
request from a party. Upon notice that such confidential status of information is at issue, the
party to the investigation which submitted the information and designated it as confidential shall
have the burden of proving such confidential status.
15. No less than ten days (or any other period of time designated by the administrative
law judge) prior to the initial disclosure to the proposed expert of any confidential information
submitted in accordance with paragraph 2, the party proposing to use such expert shall submit in
writing the name of such proposed expert and his or her educational and employment history to
the supplier. If the supplier objects to the disclosure of such confidential business information to
such proposed expert as inconsistent with the language or intent of this order or on other

8

grounds, it shall notify the recipient in writing of its objection and the grounds therefor prior to
the initial disclosure. If the dispute is not resolved on an informal basis within ten days of receipt
of such notice of objection, motion may be made to the administrative law judge for a ruling on
such obj ection. The submission of such confidential business information to such proposed
expert shall be withheld pending the ruling of the administrative law judge. The terms of this
paragraph shall be inapplicable to experts within the Commission or to experts from other
governmental agencies who are consulted with, or used by, the Commission.
16. If confidential business information submitted in accordance with paragraph 2 is
disclosed to any person other than in the manner authorized by this protective order, the party
responsible for the disclosure must immediately bring all pertinent facts relating to such
disclosure to the attention of the supplier and the administrative law judge and, without prejudice
to other rights and remedies of the supplier, make every effort to prevent further disclosure by it
or by the person who was the recipient of such information.
17. Nothing in this order shall abridge the right of any person to seek judicial review or
to pursue other appropriate judicial action with respect to any ruling made by the Commission,
its Freedom of Information Act Officer, or the administrative law judge concerning the issue of
the status of confidential business information.
18. Upon final termination of this investigation, each party that is subject to this order
shall destroy or return to the supplier all items containing confidential business information
submitted in accordance with paragraph 2 above, including all copies of such matter which may
have been made, but not including copies containing notes or other attorney's work product that
may have been placed thereon by counsel for the receiving party. All copies containing such

9

notes or other attorney's work product shall be destroyed. Receipt of material returned to the
supplier shall be acknowledged in writing. This paragraph shall not apply to the Commission,
including its investigative attorney, and the administrative law judge, which shall retain such
material pursuant to statutory requirements and for other recordkeeping purposes, but may
destroy those additional copies in its possession which are regarded as surplusage.
19. If any confidential business information which is supplied in accordance with
paragraph 2 above is supplied by a non-party to this investigation, such a non-party shall be
considered a "supplier" within the meaning of that term as it is used in the context of this order.
20. At or before the final termination of the investigation, copies of confidential
information that was in the hands of expert witnesses must be retrieved or destroyed.
21. Except as provided in Commission rule 210.20, the jurisdiction of the administrative
law judge over this order terminates upon filing of the initial determination issued at the end of
the case. After that date, the Commission has jurisdiction to enforce this order and to issue
reprimands and other sanctions.
22. The parties may move to amend this order, but any proposed amendment that would
broaden the range of persons having access to confidential business information must be
proposed and adopted before such information is supplied in reliance upon the terms of this
order, unless all suppliers of confidential information consent to the amendment.

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23. The Secretary shall serve a copy of this order upon all parties.

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Paul J. Luckem
Chief Administrative Law Judge
Issued: November 3,2010

11

ATTACHMENT A
NONDISCLOSURE AGREEMENT FOR REPORTER/STENOGRAPHER/TRANSLATOR
I, _ _ _ _ _ _ _ _ _ _ _ _ _ _, do solemnly swear that I will not divulge any
information communicated to me in any confidential portion of the investigation or hearing in
Certain Wireless Communication Devices, Portable Music and Data Processing Devices,
Computers and Components Thereof, Inv. No. 337-TA-745, except as permitted in the protective
order issued in this case. I will not directly or indirectly use, or allow the use of such information
for any purpose other than that directly associated with my official duties in this case.
Further, I will not by direct action, discussion, recommendation, or suggestion to any
person reveal the nature of content of any information communicated during any confidential
portion of the investigation or hearing in this case.
I also affirm that I do not hold any position or official relationship with any ofthe
participants in said investigation.
I am aware that the unauthorized use or conveyance of information as specified above is a
violation ofthe Federal Criminal Code and punishable by a fine of up to $10,000, imprisonment
of up to ten (10) years, or both.
Signed _ _ _ _ _ __
Dated - - - - - - Firm or affiliation

CERTAIN WIRELESS COMMUNICATION DEVICES,
PORTABLE MUSIC AND DATA PROCESSING DEVICES,
COMPUTERS AND COMPONENTS THEREOF

Inv. No. 337-TA-745

CERTIFICATE OF SERVICE
I, Marilyn R. Abbott, hereby certify that the attached Order has been served by hand upon the
Commission Investigative Attorney, Kevin G. Baer, Esq., and the following parties as indicated,
November 4, 2010
on _________________________________________

Marilyn R. Ab ot ecretary
U.S. International Trade Commission
500 E Street, SW
Washington, DC 20436

On Behalf of Complainants Motorola Mobility, Inc.:
Charles F. Schill, Esq.
Steptoe & Johnson LLP
1330 Connecticut Avenue, NW
Washington, DC 20036

Respondent:
Apple Inc.
1 Infinite Loop
Cupertino, CA 95014

( ) 'Via Hand Delivery
( )kia Overnight Mail
(JVia First Class Mail
( ) Other: _ _ __

( ) V' Hand Delivery
() ia Overnight Mail
( Via First Class Mail
( ) Other: _-:--__

UNITED STATES INTERNATIONAL TRADE COMMISSION
Washington, D.C.

In the Matter of
CERTAIN WIRELESS COMMUNICATION
DEVICES, PORTABLE MUSIC AND
DATA PROCESSING DEVICES,
COMPUTERS AND COMPONENTS
THEREOF

Inv. No. 337-TA-745

Order No.7: Amending Protective Order (Order No.1)
On January 5,2011, pursuant to Commission rules 210.15 and 210.26, and paragraph 22
of Order No.1 (November 3,2010) (Protective Order), complainant Motorola Mobility, Inc.
(Motorola) and respondent Apple, Inc. (Apple) moved to amend the Protective Order to provide
enhanced confidentiality protections for electronic computer code, and to establish a prosecution
bar. (Motion Docket No. 745-2).1
Pursuant to the pending motion the following provisions shall be incorporated as
Paragraph Nos. 24-26 in the Protective Order that has issued:
24.
Source Code. Motorola and Apple may designate documents, information, or
things as "Confidential Business Information Containing Highly Confidential-Source Code
Information," which means source code, as that term is defined below, and information related to
source code, which is to be protected in the same manner as what is set forth in this Protective
Order, subject to additional protections provided below.
A.
Source code includes human-readable programming language text that defines
software, firmware, or electronic hardware descriptions and/or instructions (hereinafter referred
to as "source code"). Source code includes, without limitation, computer code, scripts, assembly,
object code, source code listings and descriptions of source code, object code listings and
descriptions of object code, formulas, engineering specifications, or schematics that define or
otherwise describe in detail the algorithms or structure of software. Source code documents at
least include (1) printed documents that contain or refer to selected source code components

1 Movants represented that the Commission Investigative Staff does not oppose said
motion.

("printed source code"); (2) electronic communications and descriptive documents, such as
emails, design documents and programming examples, which contain or refer to selected source
code components ("described source code"); (3) electronic source code documents that reside in
a source code repository from which software and related data files may be compiled, assembled,
linked, executed, debugged and/or tested ("source code files"); and (4) transcripts, reports, video,
audio, or other media that include, quote, cite, describe, or otherwise refer to source code, source
code files, and/or the development thereof. Source code files include, but are not limited to
documents containing source code in "C", "C++", Java, Java scripting languages, assembler
languages, command languages and shell languages. Source code files may further include
"header files," "make" files, project files, link files, and other human-readable text files used in
the generation, compilation, translation, and/or building of executable software, including
software intended for execution by an interpreter. Documents and things produced during the
course ofthis litigation designated as "Highly Confidential-Source Code Information" shall be
protected in accordance with this Protective Order, subject to additional protections provided
herein below. Nothing in this Protective Order shall obligate the parties to produce any source
code nor act as an admission that any particular source code is discoverable.
B.
A producing party shall produce source code files by making them available
electronically on a stand-alone, non-networked computer without Internet access provided by the
producing party ("the Source Code Computer"). The Source Code Computer provided by the
producing party shall run a reasonably current version of a mutually agreed upon operating
system such as Apple OS X, Microsoft Windows, Linux, or SunOS. Source code files must be
produced as they are stored in the ordinary course of business and on a mutually agreed upon
computer system. The Source Code Computer shall be produced, stored, and secured at the
offices ofthe producing party's outside counselor such other appropriately secure facility as is
mutually agreed upon by the parties (termed "the designated facility"). Motorola shall make
source code available at the offices of Steptoe & Johnson in Washington, D.C. and the offices of
Quinn Emanuel Urquhart & Sullivan in Redwood Shores, California. Apple shall make source
code available at the offices of Weil, Gotshal & Manges in New York, New York and Boston,
Massachusetts. The parties reserve the right to change locations or identify an additional location
at an office of the respective outside counsel for source code inspection. Source code shall be
made available for inspection by the persons to whom disclosure is authorized pursuant to this
Protective Order, at a mutually convenient time (that, upon reasonable notice includes evenings
and weekends) at the designated facilities, with the following exception:
No outside counsel who is involved in competitive decision-making, as defined by Us.
Steel v. United States, 730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984), on behalf of a party shall have
access to material designated as Highly Confidential - Source Code Information.
C.

Source code shall be provided with the following additional protections:

(i)
The producing party shall produce source code files as they are stored in the
ordinary course of business and shall deliver one copy of the source code files to the designated
facility for review on the Source Code Computer. For sake of clarity, the producing party may
2

provide the source code files in read-only form. To the extent that either the Complainant or
Respondent considers production of specifically identified source code files in executable form
necessary to prove an element of one or more of its claims (or to disprove a claim put forth by the
other side), the parties shall meet and confer.
The producing party shall install tools that are sufficient for viewing and searching
(ii)
the 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 andlor
experts may request that commercially available software tools for viewing and searching source
code be installed on the secured computer, provided, however, that 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. Specific tools may include, but are not limited multi-file text
search tools such as "grep", dtSearch, Understand for Java, Understand for C, Visual Slick Edit,
Source-Navigator, PowerGrep and ExamDiffPro or similar programs. Where executable source
code is installed on the Source Code computer, the receiving party shall be entitled to install and
use appropriate compilers, debuggers and text editors so long as the receiving party agrees that
no edits may be performed on the Highly Confidential- Source Code Information. The
receiving party must provide the producing party with the CD or DVD containing such licensed
software tool(s) at least five (5) days in advance ofthe date upon which the receiving party
wishes to have the additional software tools available for use on the Source Code Computer.
(iii)
The producing party shall make available a laser printer with commercially
reasonable printing speeds for on-site printing during inspection of the source code. The
receiving party may print portions ofthe source code only when reasonably necessary to prepare
court filings or pleadings or other papers (including a testifying expert's expert report or for use
as deposition exhibits). The producing party must allow printing of paper copies of portions of
source code not to exceed ten (10) contiguous pages, up to a total of 100 printed pages, which the
receiving party may take away upon completing an inspection. In the event that the receiving
party believes there is a need to print a contiguous portion of source code exceeding ten (10)
pages in length or more than 100 pages total, the parties shall meet and confer regarding such
need on the day of the inspection if practicable or otherwise as soon thereafter as possible and
absent agreement, seek a Court resolution. 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 Source Code Computers. Upon printing any such
portions of source code, the printed pages shall be collected by the producing party. The
producing party shall Bates number, copy, and label "CONTAINS CONFIDENTIAL BUSINESS
INFORMATION INCLUDING HIGHLY CONFIDENTIAL SOURCE CODE" any pages
printed by the receiving party and deliver them to the receiving party or object within two
business days. If, after meeting and conferring, the producing party and the receiving party
cannot resolve the objection, the producing party shall be entitled to seek a resolution from the
Chief Administrative Law Judge of whether the printed source code in question is narrowly
tailored and was printed for a permitted purpose. The printed pages shall constitute part of the
source code produced by the producing party in this action. Each consultant, expert, or attorney

3

will record on a log every page of source code that has been printed ("print logs"). Print logs
should be secured in a locked and secure room when not in use.
(iv)
Any external storage media containing source code shall be disconnected from
and/or removed from its Source Code Computer and stored in a locked room, safe or storage
cabinet when it is not actually being accessed.
(v)
The Source Code Computer and the safe or storage cabinet must be kept in a
locked and secure room (the "Source Code Review Room").
(vi)
No recordable media or recordable devices, including without limitation sound
recorders, computers, cellular telephones, peripheral equipment, cameras, CDs, DVDs, or drives
of any kind, shall be permitted into the Source Code Review Room. The receiving party's
outside counsel and/or experts 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 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. The producing party may visually monitor the activities of the receiving party's
representatives during any source code review, but only to ensure that no unauthorized electronic
records of the source code and that no information concerning the source code are being created
or transmitted in any way. Such monitor shall not be in the Source Code Review Room, shall not
be able to listen any activity taking place in the Source Code Review Room. No video may be
made of any activity taking place in the Source Code Review Room, nor shall the monitor be
permitted to report on any activities therein other than as may relate to the above-referenced
purpose of the monitoring
(vii) Except as provided in Paragraph 24(C)(iii) above and 24(C)(xi) below, the
receiving party will not copy, remove, or otherwise transfer any source code from the Source
Code Computer including, without limitation, copying, removing, or transferring the source code
onto any recordable media or recordable device. The receiving party will not transmit any source
code in any way from the producing party's facilities or the offices of its outside counsel of
record.
(viii) The Source Code Computer and/or external storage media used to store the source
code shall be password protected and, at the option ofthe producing party, further protected
using PGP encryption.
(ix)
No electronic copies of source code shall be made (including by way of example
only, the receiving party may not scan the source code to a PDF or photograph the code), other
than volatile copies necessarily made in the course of loading, accessing, compiling, modeling
and/or executing the source code or running data processing systems that use or incorporate the
source code on the Source Code Computer. Images or copies of source code shall not be

4

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.
(x)
The receiving party's outside counsel of record may make no more than five (5)
additional paper copies of any portions of the source code received from a producing party, not
including copies attached to court filings or used at depositions, and shall maintain a log of all
paper copies of the source code received from a producing party that are delivered by the
receiving party to any qualified person under Paragraph 24(B) above. The log shall include the
names of the reviewers and/or recipients of paper copies and locations where the paper copies are
stored. Upon one reasonable notice to the receiving party by the producing party, the receiving
party shall provide a copy of this log to the producing party.
(xi)
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 at the
deposition shall be securely destroyed in a timely manner following the deposition.
(xii) Any printed pages of Source Code shall be stored in a locked safe or storage
cabinet when not actually in use.
(xiii) The inspecting party shall maintain a log of all individuals who have accessed the
Source Code Computer. The log shall be made available to the producing party upon reasonable
request. The log shall include the name of each person who accessed the Source Code
Computer. Such log and any information from it shall be inadmissible in this Investigation
except in connection with proceedings before the Court regarding any alleged violations ofthis
Protective Order.
(xiv) Unless otherwise agreed in advance by the parties in writing, following each day
on which inspection 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.
(xv) At the end of the above-styled litigation (including any related appeals), any entity
receiving source code will certify that: (a) all printed copies of source code have been returned,
with the exception of exhibits that were attached to filed pleadings or admitted into evidence; (b)
any electronic storage or memory media which may contain source code have been returned,
fully reformatted, and/or destroyed; and (c) any access logs maintained by counsel have been
archived along with counsel's other records from this litigation. Other than set forth in this
subparagraph, counsel may not maintain a file copy of source code material.
25.
Prosecution Bar. Absent the written consent ofthe producing party, any person
that receives access to confidential material produced pursuant to this Protective Order shall not
be involved in the prosecution of patents or patent applications relating to the subject matter of
the patents asserted in this action by the opposing party (including but not limited to any
application claiming priority to or otherwise related to the patents asserted in this action), before

5

any foreign or domestic agency, including the United States Patent and Trademark Office.
Nevertheless, persons having access to materials produced pursuant to this protective order may
have limited involvement in reexamination proceedings pertaining to the patent in suit or other
related patents, but in these proceedings they are barred against having any involvement, direct or
indirect, in the drafting or amending of patent claims, or the supervising of the drafting or
amending of patent claims in connection with any such reexamination proceeding. This
prohibition on patent prosecution shall begin when access to protected material is first received
by the affected individual, and shall end one (1) year after the final resolution of this action,
including all appeals. This prosecution bar is personal to the person receiving such protected
material and shall not be imputed to any other person or entity.
26.
No prejudice. Motorola and Apple agree that amending Protective Order No. 1 in
this Investigation is without prejudice to Motorola or Apple's rights to propose, request or
otherwise move for different provisions relating to source code production or prosecution bar in
any other litigation between Motorola and Apple.
Said Motion No. 745-2 is granted.

Paul J. Luc i
Chief Administrative Law Judge
Issued: January 7, 2011

6

CERTAIN WIRELESS COMMUNICATION DEVICES,
PORTABLE MUSIC AND DATA PROCESSING DEVICES,
COMPUTERS AND COMPONENTS THEREOF

Inv. No. 337-TA-745

CERTIFICATE OF SERVICE

I, Marilyn R. Abbott, hereby certify that the attached Order has been served by hand upon the
Commission Investigative Attorney, Kevin G. Baer, Esq., and the following parties as indicated,
on
10, 2011

Marilyn R. Abbott, ecretary
U.S. Interna .
Trade Commission
500 E Street, SW
Washington, DC 20436

On Behalf of Complainants Motorola, Inc. & Motorola
Mobility, Inc.:

Charles F. Schill, Esq.
Steptoe & Johnson LLP
1330 Connecticut Avenue, NW
Washington, DC 20036
P-202-429-3000
F-202-429-3902
On Behalf of Respondent Apple Inc.:
Mark G. Davis, Esq.
Weil, Gotshal & Manges LLP
1300 Eye Street. NW., Suite 900
Washington, DC 20005
P-202-682-7000
F-202-857-0940

( ) ~ia Hand Delivery
( )!Via Overnight Mail
f) Via First Class Mail
( ) Other: _ __

( ) Via Hand Delivery
( ~;¢ia Overnight Mail
('1 Via First Class Mail
( ) Other: _ _ __

PUBLIC MAILING LIST

Heather Hall
9443 Springboro Pike
Miamisburg, OH 45342

( ) Via Hand Delivery
( )}'ia Overnight Mail
("" Via First Class Mail
( ) Other: _ _ __

Kenneth Clair
Thomson West
1100 Thirteen Street, NW, Suite 200
Washington, DC 20005

( ) Via Hand Delivery
( yVia Overnight Mail
(vi) Via First Class Mail
( ) Other: _ _ __

LEXIS-NEXIS

UNITED STATES INTERNATIONAL TRADE COMMISSION
Washington, D.C.

In the Matter of
CERTAIN MOBILE DEVICES AND
RELATED SOFTWARE

ORDER NO. 1:

Inv. No. 337-TA-750

PROTECTIVE ORDER

(November 30, 2010)
WHEREAS, documents and information may be sought, produced or exhibited by and among
the parties to the above captioned proceeding, which materials relate to trade secrets or other
confidential research, development or commercial information, as such terms are used in the
Commission's Rules, 19 C.F.R. § 210.5;

IT IS HEREBY ORDERED THAT:
1. Confidential business information is information which concerns or relates to the trade
secrets, processes, operations, style of work, or apparatus, or to the production, sales, shipments,
purchases, transfers, identification of customers, inventories, amount or source of any income,
profits, losses, or expenditures of any person, firm, partnership, corporation, or other
organization, or other information of commercial value, the disclosure of which is likely to have
the effect of either (i) impairing the Commission's ability to obtain such information as is
necessary to perform its statutory functions; or (ii) causing substantial harm to the competitive
position of the person, firm, partnership, corporation, or other organization from which the
information was obtained, unless the Commission is required by law to disclose such

information. The term "confidential business information" includes "proprietary information"
within the meaning of section 777(b) of the Tariff Act of 1930 (19 U.S.C. § 1677f(b)).
2(a). Any information submitted, in pre hearing discovery or in a pleading, motion, or
response to a motion either voluntarily or pursuant to order, in this investigation, which is
asserted by a supplier to contain or constitute confidential business information shall be so
designated by such supplier in writing, or orally at a deposition, conference or hearing, and shall
be segregated from other information being submitted.

Documents shall be clearly and

prominently marked on their face with the legend:

"CONFIDENTIAL BUSINESS

INFORMATION, SUBJECT TO PROTECTIVE ORDER," or a comparable notice.

Such

information, whether submitted in writing or in oral testimony, shall be treated in accordance
with the terms ofthis protective order.
(b). The Administrative Law Judge or the Commission may determine that information
alleged to be confidential is not confidential, or that its disclosure is necessary for the proper
disposition of the proceeding, before, during or after the close of a hearing herein. If such a
determination is made by the Administrative Law Judge or the Commission, opportunity shall be
provided to the supplier of such information to argue its confidentiality prior to the time of such
ruling.
3. In the absence of written permission from the supplier or an order by the Commission
or the Administrative Law Judge, any confidential documents or business information submitted
in accordance with the provisions of paragraph 2 above shall not be disclosed to any person other
than: (i) outside counsel for parties to this investigation, including necessary secretarial and
support personnel assisting such counsel; (ii) qualified persons taking testimony involving such
documents or information and necessary stenographic and clerical personnel thereof; (iii)
2

technical experts and their staff who are employed for the purposes of this litigation (unless they
are otherwise employed by, consultants to, or otherwise affiliated with a non-governmental
party, or are employees of any domestic or foreign manufacturer, wholesaler, retailer, or
distributor of the products, devices or component parts which are the subject of this
investigation); (iv) the Commission, the Administrative Law Judge, the Commission staff, and
personnel of any governmental agency as authorized by the Commission; and (v) the
Commission, its employees, and contract personnel who are acting in the capacity of
Commission employees, for developing or maintaining the records of this investigation or related
proceedings for which this infonnation is submitted, or in internal audits and investigations
relating to the programs and operations of the Commission pursuant to 5 U.S.c. Appendix 3.1
4. Confidential business infonnation submitted in accordance with the provisions of
paragraph 2 above shall not be made available to any person designated in paragraph 3(i)2 and
(iii) unless he or she shall have first read this order and shall have agreed, by letter filed with the
Secretary of this Commission: (i) to be bound by the tenns thereof; (ii) not to reveal such
confidential business infonnation to anyone other than another person designated in paragraph 3;
and (iii) to utilize such confidential business information solely for purposes of this investigation.
5. If the Commission or the Administrative Law Judge orders, or if the supplier and all
parties to the investigation agree, that access to, or dissemination of information submitted as
confidential business infonnation shall be made to persons not included in paragraph 3 above,
such matter shall only be accessible to, or disseminated to, such persons based upon the
conditions pertaining to, and obligations arising from this order, and such persons shall be
considered subject to it, unless the Commission or the Administrative Law Judge finds that the
information is not confidential business infonnation as defmed in paragraph 1 thereof.
3

6.

Any confidential business information submitted to the Commission or the

Administrative Law Judge in connection with a motion or other proceeding within the purview
of this investigation shall be submitted under seal pursuant to paragraph 2 above. Any portion of
a transcript in connection with this investigation containing any confidential business
information submitted pursuant to paragraph 2 above shall be bound separately and filed under
seal. When any confidential business information submitted in accordance with paragraph 2
above is included in an authorized transcript of a deposition or exhibits thereto, arrangements
shall be made with the court reporter taking the deposition to bind such confidential portions and
separately label them "CONFIDENTIAL BUSINESS INFORMATION, SUBJECT TO
PROTECTIVE ORDER." Before a court reporter or translator receives any such information, he
or she shall have first read this order and shall have agreed in writing to be bound by the terms
thereof. Alternatively, he or she shall sign the agreement included as Attachment A hereto.
Copies of each such signed agreement shall be provided to the supplier of such confidential
business information and the Secretary of the Commission.
7. The restrictions upon, and obligations accruing to, persons who become subject to this
order shall not apply to any information submitted in accordance with paragraph 2 above to
which the person asserting the confidential status thereof agrees in writing, or the Commission or
the Administrative Law Judge rules, after an opportunity for hearing, was publicly known at the
time it was supplied to the receiving party or has since become publicly known through no fault
ofthe receiving party.
8. The Commission, the Administrative Law Judge, and the Commission investigative
attorney acknowledge that any document or information submitted as confidential business
information pursuant to paragraph 2 above is to be treated as such within the meaning of 5
4

u.s.C. § 552(b)(4) and 18 U.S.C. § 1905, subject to a contrary ruling, after hearing, by the
Commission or its Freedom of Information Act Officer, or the Administrative Law Judge. When
such information is made part of a pleading or is offered into the evidentiary record, the data set
forth in 19 C.F.R. § 201.6 must be provided except during the time that the proceeding is
pending before the Administrative Law Judge.

During that time, the party offering the

confidential business information must, upon request, provide a statement as to the claimed basis
for its confidentiality.
9. Unless a designation of confidentiality has been withdrawn, or a determination has
been made by the Commission or the Administrative Law Judge that information designated as
confidential, is no longer confidential, the Commission, the Administrative Law Judge, and the
Commission investigative attorney shall take all necessary and proper steps to preserve the
confidentiality of, and to protect each supplier's rights with respect to, any confidential business
information designated by the supplier in accordance with paragraph 2 above, including, without
limitation: (a) notifying the supplier promptly of (i) any inquiry or request by anyone for the
substance of or access to such confidential business information, other than those authorized
pursuant to this order, under the Freedom of Information Act, as amended (5 U.S.C. § 552) and
(ii) any proposal to redesignate or make public any such confidential business information; and
(b) providing the supplier at least seven days after receipt of such inquiry or request within which
to take action before the Commission, its Freedom of Information Act Officer, or the
Administrative Law Judge, or otherwise to preserve the confidentiality of and to protect its rights
in, and to, such confidential business information.
10. If while an investigation is before the Administrative Law Judge, a party to this order
who is to be a recipient of any business information designated as confidential and submitted in
5

accordance with paragraph 2 disagrees with respect to such a designation, in full or in part, it
shall notifY the supplier in writing, and they will thereupon confer as to the status of the subject
information proffered within the context of this order. If prior to, or at the time of such a
conference, the supplier withdraws its designation of such information as being subject to this
order, but nonetheless submits such information for purposes of the investigation; such supplier
shall express the withdrawal, in writing, and serve such withdrawal upon all parties and the
Administrative Law Judge. If the recipient and supplier are unable to concur upon the status of
the subject information submitted as confidential business information within ten days from the
date of notification of such disagreement, any party to this order may raise the issue of the
designation of such a status to the Administrative Law Judge who will rule upon the matter. The
Administrative Law Judge may sua sponte question the designation of the confidential status of
any information and, after opportunity for hearing, may remove the confidentiality designation.
11. No less than 10 days (or any other period of time designated by the Administrative
Law Judge) prior to the initial disclosure to a proposed expert of any confidential information
submitted in accordance with paragraph 2, the party proposing to use such expert shall submit in
writing the name of such proposed expert and his or her educational and detailed employment
history to the supplier. If the supplier objects to the disclosure of such confidential business
information to such proposed expert as inconsistent with the language or intent of this order or
on other grounds, it shall notifY the recipient in writing of its objection and the grounds therefore
prior to the initial disclosure. If the dispute is not resolved on an informal basis within ten days
of receipt of such notice of objections, the supplier shall submit immediately each objection to
the Administrative Law Judge for a ruling. If the investigation is before the Commission the
matter shall be submitted to the Commission for resolution. The submission of such confidential
6

business information to such proposed expert shall be withheld pending the ruling of the
Commission or the Administrative Law Judge. The terms of this paragraph shall be inapplicable
to experts within the Commission or to experts from other governmental agencies who are
consulted with or used by the Commission.
12. If confidential business information submitted in accordance with paragraph 2 is
disclosed to any person other than in the manner authorized by this protective order, the party
responsible for the disclosure must immediately bring all pertinent facts relating to such
disclosure to the attention of the supplier and the Administrative Law Judge and, without
prejudice to other rights and remedies of the supplier, make every effort to prevent further
disclosure by it or by the person who was the recipient of such information.
13. Nothing in this order shall abridge the right of any person to seek judicial review or
to pursue other appropriate judicial action with respect to any ruling made by the Commission,
its Freedom of Information Act Officer, or the Administrative Law Judge concerning the issue of
the status of confidential business information.
14. Upon final termination of this investigation, each recipient of confidential business
information that is subject to this order shall assemble and return to the supplier all items
containing such information submitted in accordance with paragraph 2 above, including all
copies of such matter which may have been made. Alternatively, the parties subject to this order
may, with the written consent of the supplier, destroy all items containing confidential business
information and certify to the supplier (or his counsel) that such destruction has taken place.
This paragraph shall not apply to the Commission, including its investigative attorney, and the
Administrative Law Judge, which shall retain such material pursuant to statutory requirements

7

and for other recordkeeping purposes, but may destroy those additional copies in its possession
which it regards as surplusage.
Notwithstanding the above paragraph, confidential business information may be
transmitted to a district court pursuant to Commission Rule 21O.5(c).
15.

If any confidential business information which is supplied

III

accordance with

paragraph 2 above is supplied by a nonparty to this investigation, such a nonparty shall be
considered a "supplier" as that term is used in the context of this order.
16. Each nonparty supplier shall be provided a copy of this order by the party seeking
information from said supplier.
17. The Secretary shall serve a copy of this order upon all parties.

Theodore R. Essex
Administrative Law Judge

8

Attachment A

NONDISCLOSURE AGREEMENT FOR REPORTER/STENOGRAPHER/TRANSLATOR
I, _ _ _ _ _ _ _ _ _ _ _ _, do solemnly swear or affirm that I will not divulge
any information communicated to me in any confidential portion of the investigation or hearing
in the matter of Certain Mobile Devices and Related Software, Investigation No. 337-TA-750,
except as permitted in the protective order issued in this case. I will not directly or indirectly
use, or allow the use of such information for any purpose other than that directly associated with
my official duties in this case.
Further, I will not by direct action, discussion, recommendation, or suggestion to any
person reveal the nature or content of any information communicated during any confidential
portion of the investigation or hearing in this case.
I also affirm that I do not hold any position or official relationship with any of the
participants in said investigation.
I am aware that the unauthorized use or conveyance of information as specified above is
a violation of the Federal Criminal Code and punishable by a fine of up to $10,000,
imprisonment of up to ten (10) years, or both.
Signed _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Dated - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Firm or affiliation - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

9

Inv. No. 337-TA-750

CERTAIN MOBILE DEVICES AND RELATED SOFTWARE

PUBLIC CERTIFICATE OF SERVICE

I, Marilyn R. Abbott, hereby certifY that the attached ORDER 1 has been served by hand upon, the
Commission Investigative Attorney, Benjamin Levi, Esq. and the following parties as indicated on
November 30,2010.

j}(d#

k- ~f
(f~u,

MariiYJ/ItAbbott U.S. International Trade CommissIOn
500 E Street, SW, Room 112A
Washington, D.C. 20436

On Behalf of Complainant Apple Inc.:
Edward S. Jou, Esq.
WElL, GOTSHALL & MANGES LLP
1300 Eye Street, NW, Suite 900
Washington, DC 20005

( ) Via Hand Delivery
( ) Via Overnight Delivery
( 0Via First Class Mail
( ) International

On Behalf of Respondents Motorola, Inc. and
Motorola Mobility, Inc.:
Charles F. Schill, Esq.
STEPTOE & JOHNSON LLP
1330 Connecticut Avenue, NW
Washington, DC 20036

(
(
(
(

) Via Hand Delivery
Via Overnight Delivery
) Via First Class Mail
) International

~

CERTAIN MOBILE DEVICES AND RELATED SOFTWARE

Inv. No. 337-TA-750

PUBLIC CERTIFICATE OF SERVICE - PAGE 2

Public Mailing List:

Heather Hall
LEXIS - NEXIS
9443 Springboro Pike
Miamisburg, OH 45342
Kenneth Clair
THOMSON WEST
1100 Thirteenth Street, NW, Suite 200
Washington, D.C. 20005

(
(

) Via Hand Delivery
) Via Overnight Mail
Via First Class Mail
) Other:--,-_ __

( v1
(
(
(

) Via Hand Delivery
))'ia Overnight Mail
( J5 Via First Class Mail
( ) Other: _ _ __

UNITED STATES INTERNATIONAL TRADE COMMISSION
Washingt~n,

D.C.

In the Matter of
CERTAIN MOBILE DEVICES AND
RELATED SOFTWARE

ORDER NO. 4:

Inv. No. 337-TA-750

AMENDING THE PROTECTIVE ORDER

(January 14,2011)
On January 13,2011, complainant Apple, Inc. ("Apple") and respondents Motorola
Inc. and Motorola Mobility, Inc. (collectively "Motorola") filed a joint motion to amend
the Protective Order to incorporate provision regarding source code production and a
patent prosecution bar.

(Motion Docket No. 750-001.)

The motion states that the

Commission Investigative Staff does not oppose the motion.
Order No.1 (Protective Order) is hereby amended to add ~~ 18-20 of as follows:
18.
Source Code. Motorola and Apple may designate documents, information,
or things as "Confidential Business Information Containing Highly Confidential-Source
Code Information," which means source code, as that term is defined below, and
information related to source code, which is to be protected in the same manner as what is
set forth in this Protective Order, subject to additional protections provided below.
A.
Source code includes human-readable programming language text that
defines software, firmware, or electronic hardware descriptions and/or instructions
(hereinafter referred to as "source code"). Source code includes, without limitation,
computer code, scripts, assembly, object code, source code listings and descriptions of
source code, object code listings and descriptions of object code, formulas, engineering
specifications, or schematics that define or otherwise describe in detail the algorithms or
structure of software. Source code documents at least include (1) printed documents that
contain or refer to selected source code components ("printed source code"); (2) electronic
communications and descriptive documents, such as emails, design documents and
programming examples, which contain or refer to selected source code components
("described source code"); (3) electronic source code documents that reside in a source
code repository from which software and related data files may be compiled, assembled,

linked, executed, debugged and/or tested ("source code files"); and (4) transcripts, reports,
video, audio, or other media that include, quote, cite, describe, or otherwise refer to source
code,. source code files, and/or the development thereof. Source code files include, but are
not limited to documents containing source code in "C", "C++", Java, Java scripting
languages, assembler languages, command languages and shell languages. Source code
files may further include "header files," "make" files, project files, link files, and other
human-readable text files used in the generation, compilation, translation, and/or building
of executable software, including software intended for execution by an interpreter.
Documents and things produced during the course of this litigation designated as "Highly
Confidential-Source Code Information" shall be protected in accordance with this
Protective Order, subject to additional protections provided herein below. Nothing in this
Protective Order shall obligate the parties to produce any source code nor act as an
admission that any particular source code is discoverable.
B.
A producing party shall produce source code files by making them available
electronically on a stand-alone, non-networked computer without Internet access provided
by the producing party ("the Source Code Computer"). The Source Code Computer
provided by the producing party shall run a reasonably current version of a mutually
agreed upon operating system such as Apple as x, Microsoft Windows, Linux, or SunOS.
Source code files must be produced as they are stored in the ordinary course of business
and on a mutually agreed upon computer system. The Source Code Computer shall be
produced, stored, and secured at the offices of the producing party's outside counselor
such other appropriately secure facility as is mutually agreed upon by the parties (termed
"the designated facility"). Motorola shall make source code available at the offices of
Steptoe & Johnson in Washington, D.C. and the offices of Quinn Emanuel Urquhart &
Sullivan in Redwood Shores, California. Apple shall make source code available at the
offices of Weil, Gotshal & Manges in New York, New York and Boston, Massachusetts.
The parties reserve the right to change locations or identifY an additional location at an
office of the respective outside counsel for source code inspection. Source code shall be
made available for inspection by the persons to whom disclosure is authorized pursuant to
this Protective Order, at a mutually convenient time (that, upon reasonable notice includes
evenings and weekends) at the designated facilities, with the following exception:

No outside counsel who is involved in competitive decision-making, as defined by
Us. Steel v. United States, 730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984), on behalf of a party
Source Code
shall have access to material designated as Highly Confidential
Information.
C.

Source code shall be provided with the following additional protections:

(i)
The producing party shall produce source code files as they are stored in the
ordinary course of business and shall deliver one copy of the source code files to the
designated facility for review on the Source Code Computer. For sake of clarity, the
producing party may provide the source code files in read-only form. To the extent that
either the Complainant or Respondent considers production of specifically identified
2

source code files in executable form necessary to prove an element of one or more of its
claims (or to disprove a claim put forth by the other side), the parties shall meet and confer.
(ii)
The producing party shall install tools that are sufficient for viewing and
searching the 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. tOr viewing and searching source code be installed on the secured computer,
provided, however, that 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. Specific tools may inc~ude, but are not limited multi-file text search
tools such as "grep", dtSearch, Understand for Java, Understand for C, Visual Slick Edit,
Source-Navigator, PowerGrep and ExamDiff Pro or similar programs. Where executable
source code is installed on the Source Code computer, the receiving party shall be entitled
to install and use appropriate compilers, debuggers and text editors so long as the receiving
party agrees that no edits may be performed on the Highly Confidential - Source Code
Information. The receiving party must provide the producing party with the CD or DVD
containing such licensed software tool( s) at least five (5) days in advance of the date upon
which the receiving party wishes to have the additional software tools available for use on
the Source Code Computer.
(iii)
The producing party shall make available a laser printer with commercially
reasonable printing speeds for on-site printing during inspection of the source code. The
receiving party may print portions of the source code only when reasonably necessary to
prepare court filings or pleadings or other papers (including a testifying expert's expert
report or for use as deposition exhibits). The producing party must allow printing of paper
copies of portions of source code not to exceed ten (10) contiguous pages, up to a total of
100 printed pages, which the receiving party may take away upon completing an
inspection. In the event that the receiving party believes there is a need to print a
contiguous portion of source code exceeding ten (10) pages in length or more than 100
pages total, the parties shall meet and confer regarding such need on the day of the
inspection if practicable or otherwise as soon thereafter as possible and absent agreement,
seek a Court resolution. 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 Source Code Computers. Upon printing any such
portions of source code, the printed pages shall be collected by the producing party. The
producing party shall Bates number, copy, and label "CONTAINS CONFIDENTIAL
BUSINESS INFORMATION INCLUDING HIGHL Y CONFIDENTIAL SOURCE
CODE" any pages printed by the receiving party and deliver them to the receiving party or
object within two business days. If, after meeting and conferring, the producing party and
the receiving party cannot resolve the objection, the producing party shall be entitled to
seek a resolution from the Chief Administrative Law Judge of whether the printed source
code in question is narrowly tailored and was printed for a permitted purpose. The printed
pages shall constitute part of the source code produced by the producing party in this
action. Each consultant, expert, or attorney will record on a log every page of source code
3

that has been printed ("print logs"). Print logs should be secured in a locked and secure
room when not in use.
(iv)
Any external storage media containing source code shall be disconnected
from and/or removed from its Source Code Computer and stored in a locked room, safe or
storage cabinet when it is not actually being accessed.
(v)
The Source Code Computer and the safe or storage cabinet must be kept in
a locked and secure room (the "Source Code Review Room").
(vi)
No recordable media or recordable devices, including without limitation
sound recorders, computers, cellular telephones, peripheral equipment, cameras, CDs,
DVDs, or drives of any kind, shall be permitted into the Source Code Review Room. The
receiving party's outside counsel and/or experts 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 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. The producing
party may visually monitor the activities of the receiving party's representatives during any
source code review, but only to ensure that no unauthorized electronic records of the
source code and that no information concerning the source code are being created or
transmitted in any way. Such monitor shall not be in the Source Code Review Room, shall
not be able to listen any activity taking place in the Source Code Review Room. No video
may be made of any activity taking place in the Source Code Review Room, nor shall the
monitor be permitted to report on any activities therein other than as may relate to the
above-referenced purpose of the monitoring
(vii) Except as provided in Paragraph 24(C)(iii) above and 24(C)(xi) below, the
receiving party will not copy, remove, or otherwise transfer any source code from the
Source Code Computer including, without limitation, copying, removing, or transferring
the source code onto any recordable media or recordable device. The receiving party will
not transmit any source code in any way from the producing party's facilities or the offices
of its outside counsel of record.
(viii) The Source Code Computer and/or external storage media used to store the
source code shall be password protected and, at the option of the producing party, further
protected using PGP encryption.
(ix)
No electronic copies of source code shall be made (including by way of
example only, the receiving party may not scan the source code to a PDF or photograph the
code), other than volatile copies necessarily made in the course of loading, accessing,
compiling, modeling and/or executing the source code or running data processing systems
that use or incorporate the source code on the Source Code Computer. Images or copies of
source code shall not be included in correspondence between the parties (references to
4

production numbers shall be used instead), and shall be omitted from pleadings and other
papers whenever possible.
(x)
The receiving party's outside counsel of record may make no more than five
(5) additional paper copies of any portions of the source code received from a producing
party, not including copies attached to court filings or used at depositions, and shall
maintain a log of all paper copies of the source code received from a producing party that
are delivered by the receiving party to any qualified person under Paragraph 24(B) above.
The log shall include the names of the reviewers and/or recipients of paper copies and
locations where the paper copies are stored. Upon one reasonable notice to the receiving
party by the producing party, the receiving party shall provide a copy of this log to the
producing party.
(xi)
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 at the deposition shall be securely destroyed in a timely manner following the
deposition.
(xii) Any printed pages of Source Code shall be stored in a locked safe or storage
cabinet when not actually in use.
(xiii) The inspecting party shall maintain a log of all individuals who have
accessed the Source Code Computer. The log shall be made available to the producing
party upon reasonable request. The log shall include the name of each person who
accessed the Source Code Computer. Such log and any information from it shall be
inadmissible in this Investigation except in connection with proceedings before the Court
regarding any alleged violations of this Protective Order.
(xiv) Unless otherwise agreed in advance by the parties in writing, following
each day on which inspection 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.
(xv) At the end of the above-styled litigation (including any related appeals), any
entity receiving source code will certify that: (a) all printed copies of source code have
been returned, with the exception of exhibits that were attached to filed pleadings or
admitted into evidence; (b) any electronic storage or memory media which may contain
source code have been returned, fully reformatted, and/or destroyed; and (c) any access
logs maintained by counsel have been archived along with counsel's other records from
this litigation. Other than set forth in this subparagraph, counsel may not maintain a file
copy of source code material.
19.
Prosecution Bar. Absent the written consent of the producing party, any
person that receives access to confidential material produced pursuant to this Protective
Order shall not be involved in the prosecution of patents or patent applications relating to
5

the subject matter of the patents asserted in this action by the opposing party (including but
not limited to any 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. Nevertheless, persons having access to materials produced
pursuant to this protective order may have limited involvement in reexamination
proceedings pertaining to the patent in suit or other related patents, but in these
proceedings they are barred against having any involvement, direct or indirect, in the
drafting or amending of patent claims, or the supervising of the drafting or amending of
patent claims in connection with any such reexamination proceeding. These prohibitions
on patent prosecution shall begin when access to protected material is first received by the
affected individual, and shall end one (1) year after the final resolution of this action,
including all appeals. This prosecution bar is personal to the person receiving such
protected material and shall not be imputed to any other person or entity.
20.
No prejudice. Motorola and Apple agree that amending Protective Order No. 1 in
this Investigation is without prejudice to Motorola or Apple's rights to propose, request or
otherwise move for different provisions relating to source code production or prosecution
bar in any other litigation between Motorola and Apple.
Said amendments are hereby in effect with the issuance of this order.
SO ORDERED.

Administrative Law Judge

6

IN THE MATTER OF CERTAIN MOBILE DEVICES~
AND RELATED SOFTWARE THEREOF

Inv. No. 337-TA-750

PUBLIC CERTIFICATE OF SERVICE

I, Marilyn R. Abbott, hereby certify that the attached ORDER 4 has been served by hand upon, the
Commission Investigative Attorney, Benjamin Levi, Esq. and the following parties as indicated on
January14, 2011.

Marilyn R. Abb
Secretary
U.S. Internationa Trade Commission
500 E Street, SW, Room l12A
Washington, D.C. 20436

ON BEHALF OF COMPLAINANT APPLE INC.:

Mark G. Davis, Esq.
WElL, GOTSHALL & MANGES LLP.
1300 Eye Street, NW, Ste 900
Washington, DC 20005

( ) Via Hand Delivery
( )yia Overnight Mail
( ./) Via First Class Mail
( ) Other: _ _ __

ON BEHALF OF RESPONDENTS MOTOROLA, INC. AND MOTOROLA
MOBILITY, INC.:

Charles F. Schill, Esq.
STEPTOE & JOHNSON LLP.
1330 Connecticut Avenue, NW
Washington, DC 20036

(
(
(
(

) Via Hand Delivery
~ia Overnight Mail
) Via First Class Mail
) Other: _ _ __

IN THE MATTER OF CERTAIN MOBILE DEVICES,
AND RELATED SOFTWARE THEREOF

Inv. No. 337-TA-750

CERTIFICATE OF SERVICE - PAGE 2

PUBLIC MAILING LIST:
Heather Hall
LEXIS - NEXIS
9443 Springboro Pike
Miamisburg, OH 45342

( ) Via Hand Delivery
( ) Via Overnight Mail
( v)'Via First Class Mail
( ) Other: _ _ __

Kenneth Clair
THOMSON WEST
1100 Thirteenth Street, NW, Suite 200
Washington, D.C. 20005

( ) Via Hand Delivery
( ) Via Overnight Mail
( 0via First Class Mail
( ) Other: _ _ __