HealthTrio, LLC v. Aetna Inc. et al

Filing 25

PROTECTIVE ORDER. By Judge Robert E. Blackburn on 3/5/13. (kfinn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 12-cv-03229-REB
HEALTHTRIO, LLC, a Colorado limited liability company,
Plaintiff,
vs.
AETNA, INC., a Pennsylvania corporation,
ACTIVEHEALTH MANAGEMENT, INC., a Delaware corporation, and
MEDICITY, INC., a Delaware corporation,
Defendants.

PROTECTIVE ORDER

Pursuant to the stipulation filed, which the Court finds to be proper,
IT IS HEREBY ORDERED that the following Protective order under Rule 26 of
the Federal Rules of Civil Procedure and the Local Rules of this Court will apply in this
action:
1.

Designation of Confidential Material.
(a)

General. “Designated Material” includes any documents, materials,

tangible things, items, testimony or other information produced or provided by
any party in connection with discovery in this litigation, including third-parties
responding to subpoenas issued in this case, (hereinafter, the “Producing Party”
or “Designating Party”) to another party (hereinafter, the “Receiving Party”) may
be designated “Confidential,” “Confidential - Outside Attorneys’ Eyes Only,” or
“Confidential Source Code - Outside Attorneys’ Eyes Only,” subject to the

limitations and guidelines set forth herein. For purposes of this Order,
“Confidential” information shall mean all information that qualifies for protection
under standards developed under FED. R. CIV. P. 26(c). The “Confidential Outside Attorneys’ Eyes Only” designation is reserved for extremely sensitive
“Confidential” information whose disclosure to another party or nonparty would
create a substantial risk of harm to the competitive position of the Producing
Party. Any material constituting or containing non-public source code of a party’s
software or computer applications may be designated “Confidential Source Code
- Outside Attorneys’ Eyes Only.”
(b)

Designated Material shall also be designated for the purposes of

protecting the Producing Party’s proprietary, confidential, commercially or
competitively sensitive technical, business, financial or trade secret information,
the confidential, personal or financial affairs of its employees or third parties, or
other information not publicly know. Examples of properly Designated Material
include source code, trade secrets, non-public technical information, practices or
methods, non-public marketing drafts, plans or strategies, product data or
projections, non-public financial data, strategic business materials, or
relationships with third parties, including any agreement documenting the terms
of any such relationship. The preceding examples are listed for exemplary
purposes only and are not intended to limit or restrict a Producing Party form
designating other information “Confidential,” “Confidential - Outside Attorneys’
Eyes Only,” or “Confidential Source Code - Outside Attorneys’ Eyes Only” in
good faith
(c)

Limits on Designated Materials. No item shall be designated or
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deemed to be Designated Material if it is available to the public at the time of
disclosure or becomes publicly known through means not constituting a breach
of this Protective Order by the Receiving Party. This Protective Order shall not
be construed to protect information that the Receiving Party can show was
already known to it or was received by the Receiving Party after the time of
disclosure hereunder from a third-party having the right to make such a
disclosure.
(d)

Designation Procedure. Designation shall be made, where

practicable, by conspicuously marking each page of a document, each separate
part or component of a thing, or each separate item of other material with the
legend “Confidential,” “Confidential - Outside Attorneys’ Eyes Only” or
“Confidential Source Code - Outside Attorneys’ Eyes Only.” If marking the
Designated Material is not practicable, designation may be made on a container
for a tag attached to the Designated Material. A party wishing to invoke the
provisions of this Protective Order shall designate the documents, materials,
items, or information, or portions thereof, at the time such information is
disclosed, or when the party seeking protection becomes aware of the nature of
the information disclosed and sought to be protected. In the case of information
produced for inspection, but not yet provided to the inspecting party, such
information shall presumptively be deemed “Confidential - Outside Attorneys’
Eyes Only,” regardless of whether so identified, until copies thereof are produced
to the inspecting party, except that material constituting or reflecting source code
shall be presumptively deemed “Confidential Source Code - Outside Attorneys’
Eyes Only” and treated in accordance with the procedures of Paragraph 6 below.
3

(e)

Designation Procedure for Deposition Testimony. With respect to

deposition testimony, the witness under deposition, or his/her counsel, or any
counsel representing any person or party at the deposition, may designate such
testimony as “Confidential,” “Confidential - Outside Attorneys’ Eyes Only” or
“Confidential Source Code - Outside Attorneys’ Eyes Only,” as appropriate,
either on the record at the deposition or in writing to all parties within thirty (30)
days after the mailing the deposition transcript by the court reporter. The
provisions of this paragraph may be invoked with respect to the witness’s entire
deposition, or any portion thereof, at any time during the deposition or within
thirty (30) days thereafter. Each party in receipt of a copy of a deposition
transcript designated under this paragraph shall mark each copy of each portion
of such Designated Material therein not already marked by the reporter
“Confidential,” “Confidential - Outside Attorneys’ Eyes Only” or “Confidential
Source Code - Outside Attorneys’ Eyes Only,” as provided for in Paragraph 1(d)
above, and will thereafter destroy any unmarked copies of the transcript in its
possession, custody or control. Until thirty (30) days after mailing of the t
transcript by the court report has passed, the entire transcript shall be treated
as “Confidential - Outside Attorneys’ Eyes Only,” except that any portion of any
transcript reflecting material designated “Confidential Source Code - Outside
Attorneys’ Eyes Only” shall be presumptively treated in accordance with the
procedures of Paragraph 6 below.
(f)

Deposition Conduct. If Designated Material is referred to during

the course of deposition of this action, or if any question asked, answer given, or
answer about to be given contains or is reasonably likely to contain Designated
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Material, then, in the case of material designated “Confidential,” any person who
is not designated in Paragraph 4 below and is not the deponent, the deponent’s
counsel, the reporter or the videographer must leave the room during such
portion of the deposition; in the case of material designated “Confidential Outside Attorneys’ Eyes Only” or “Confidential Source Code - Outside Attorneys’
Eyes Only,” any person who is not designated in Paragraph 5 below and is not
the deponent, the deponent’s counsel, the reporter or the videographer must
leave the room during such portion of the deposition. This paragraph shall not
be interpreted to authorize disclosure of Designated Material to any person to
whom disclosure is prohibited by this Protective Order.
2.

Limits on Use of Designated Material. Designated Material shall be used

by a Receiving party only for purposes of prosecution or defense of this action and for
no other purpose and, specifically, shall not be used by a Receiving Party for any
business or competitive purpose. No Designated Material shall, without prior written
consent of the Producing Party, be disclosed by a Receiving party to anyone other than
the personnel specified in Paragraphs 4 and 5 below or in any manner other than as
described in this Protective Order. Designated Material shall be carefully maintained so
as to preclude access by persons who are not entitled to receive such information.
Nothing in this Protective Order shall preclude any party or its counsel of record from
disclosing or using, in any manner or for any purpose, any information or documents
from the party’s own files that the party itself has designated “Confidential,” “Confidential
- Outside Attorneys’ Eyes Only” or “Confidential Source Code - Outside Attorneys’ Eyes
Only.”
3.

Patent Prosecution. In no event shall a Receiving Party use Designated
5

Material of a Producing Party for the purpose of preparing or prosecuting any patent
application, or in connection with any other proceeding before the U.S. Patent and
Trademark Office or any foreign or international patent office. Individuals given access
to material designated “Confidential - Outside Attorneys’ Eyes Only,” or “Confidential
Source Code - Outside Attorneys’ Eyes Only” under Paragraphs 5 and 6 below and who
actually access any such material shall not themselves prepare, or counsel, or assist
others with the preparation, filing, or prosecution of any of the plaintiff’s or defendants’
pending patent applications and any divisionals, continuations, continuations-in-part or
foreign counterparts, whether issued, pending or yet to be filed. The restrictions in this
paragraph do not apply to any reissue, reexamination, post-grant review, or other
administrative proceeding challenging the validity or enforceability of one or more
patents-in-suit that is initiated by a defendant to this lawsuit.
4.

Access To Material Designated “Confidential”. Material designated

“Confidential” and all information and material derived from it, including copies,
recordings, summaries, abstracts, excerpts, analyses, compilations or the like, may be
given, shown, made available or communicated in any way only to:
(a)

outside litigation attorneys for the parties who are employed by the

firms of record in this case, their staff, and professional litigation support vendors
retained by them or by the parties;
(b)

independent consultants or experts engaged by counsel or by the

parties in this litigation and their staffs, whether or not such experts are paid
directly by a party, if cleared by the parties pursuant to Paragraph 7 of this
Protective Order;
(c)

independent persons or firms retained by any party for the purpose
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of producing graphic or visual aids, if cleared by the parties pursuant to
Paragraph 7 of this Protective Order;
(d)

professional court reporters and videographers to the extent

Designated Material is disclosed at a deposition such person is transcribing or
recording;
(e)

at a deposition, with respect to documentary material, any

deponent who authored or has previously received the particular Designated
Material sought to be disclosed to that person, if the document on its face or the
deponent’s testimony indicates that person authored or received the document;
(f)

at a deposition, any deponent employed at the time of the

deposition by the party that designated the particular Designated Material;
(g)

at a deposition, any person formerly employed by the Designating

Party who was involved in the matters to which the Designated Material relates
or refers;
(h)

the Court and its staff; and

(i)

no more than three (3) specifically designated corporate officers or

employees internally employed by each party (hereinafter “Designated Officers”),
provided that “Confidential” information will be made accessible to such persons
solely in connection with obtaining their advice in preparation for trial or
depositions in this action, including any motions made in this action, and
provided further that each Designated Officer review and agree to be bound by
this Protective Order. Designated Officers are limited to those individuals
designated below and may be substituted only on written consent of the parties:

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(i)

Plaintiff

Asma Hasan, General Counsel, HealthTrio LLC
Dr. Malik Hasan, CEO, HealthTrio LLC
Dominic Wallen, President and COO, HealthTrio LLC
(ii)

Defendants:

Eric Myers, Chief of Staff for Law and Regulatory Affairs, Aetna Inc.
Ashish Shah, Chief Technology Officer and Head of Product, Medicity Inc.
Richard Noffsinger, CEO & President, ActiveHealth Management Inc.
For the avoidance of doubt, Designated Officers are not permitted access to any
material designated “Confidential - Outside Attorneys’ Eyes Only” or “Confidential
Source Code - Outside Attorneys’ Eyes Only.”
5.

Access to Materials Designated “Confidential - Outside Attorneys’ Eyes

Only.” Material designated “Confidential - Outside Attorneys’ Eyes Only” and all
information and material derived from it, including copies, recordings, summaries,
abstracts, excerpts, analyses, compilation or the like may be given, shown, made
available or communicated in any way only to:
(a)

outside litigation attorneys of the parties who are employed by the

firms of record in this case, their staff, and professional litigation support vendors
retained by them or by the parties;
(b)

independent consultants or experts engaged by counsel or by the

parties in this litigation and their staffs, whether or not such experts are paid
directly by a party, if cleared by the parties pursuant to Paragraph 7 of this
Protective Order;
(c)

independent persons or firms retained by any party for the purpose
8

of producing graphic or visual aids, if cleared by the parties pursuant to
Paragraph 7 of this Protective Order;
(d)

professional court reporters and videographers to the extent

Designated Material is disclosed at a deposition such person is transcribing or
recording;
(e)

at a deposition, with respect to documentary material, any

deponent who authored or has previously received the particular Designated
Material sought to be disclosed to that person, if the document on its face or the
deponent’s testimony indicates that person authored or received the document.
(f)

at a deposition, any deponent employed at the time of the

deposition by the party that designated the particular Designated Material;
(g)

at a deposition, any person formerly employed by the Designating

Party who was involved in the matters to which the Designated Material relates
or refers;
(h)

the Court and its staff; and

(i)

any Designated Officer listed above who is also an attorney and

who agrees to be bound by the provisions of this Protective Order.
6.

Access to Material Designated “Confidential Source Code - Outside

Attorneys’ Eyes Only.” Protected material designated as “Confidential Source Code Outside Attorneys’ Eyes Only” will be subject to all the protections afforded to
“Confidential - Outside Attorneys’ Eyes Only” information and may be disclosed only to
the individuals to whom “Confidential - Outside Attorneys’ Eyes Only” information may
be disclosed. Nothing in this protective order shall be construed so as to (i) obligate the
parties to produce source code, (ii) serve as an admission that the source code of any
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type is discoverable in this litigation, or (iii) waive any party’s right to object on any
ground to the production of source code. In the event that source code is produced in
this litigation, source code designated “Confidential Source Code - Outside Attorneys’
Eyes Only” shall be afforded the following additional protections:
(a)

Source code is to be produced as follows:
(i)

The Designating Party will produce the source code and all

related files in native format and broken out by version number and, if
applicable, product name and/or product model number. The Designating
Party will identify or supply software and/or programming tools that can be
used to view the source code.
(ii)

The production of a given version of source code and

related files will preserve all file names, directory names, modification
and/or commit dates, and directory structures.
(iii)

The Designating Party will produce source code and related

files designated “Confidential Source Code - Outside Attorneys’ Eyes
Only” pursuant to this Protective Order on an encrypted CD(s), DVD(s),
hard drive(s), virtual drive(s), or other media.
(iv)

To the extent that total compliance with Paragraphs 6(a)(i)

and 6(a)(ii) would be infeasible or burdensome for a Designating Party
with respect to non-source-code documents or information (e.g., with
respect to source code management or revision system files), the
Designating Party and Receiving Party will discuss solutions wherein the
documents or information are produced electronically and reasonably in
compliance with Paragraphs 6(a)(i) and 6(a)(ii). This Paragraph does not
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exempt production of source code from compliance with Paragraphs
6(a)(i) and 6(a)(ii).
(v)

Paragraphs 6(a)(i) through 6(a)(ii) apply to the extent the

source-code document or file related to source code is available to the
Designating Party in native format. If the document is not available in
native format (because, e.g., it is a printout of source code with
handwritten remarks), the document may be produced in accordance with
the Parties’ agreements, and any orders by this Court, regarding other
types of documents.
(b)

To the extent any Receiving party electronically maintains

“Confidential Source Code - Outside Attorneys’ Eyes Only”, such Receiving Party
will maintain such “Confidential Source Code - Outside Attorneys’ Eyes Only”
solely at the offices of Outside Counsel for the Receiving Party or at the offices
of independent consultants or experts engaged by counsel or by the parties in
this litigation and qualified according to the procedures of Paragraph 7 of this
Protective Order on an encrypted CD(s), DVD(s), hard drive(s), virtual drive(s)
or other media, that is encrypted using commercially reasonable encryption
technology. Access to the password(s) or decryption key(s) used to unlock the
encrypted media will be restricted and such password(s) or decryption key(s)
will be stored securely. Upon reasonable request, the Receiving party will
provide the Designating Party with a list of the persons with access to such
password(s) aor decryption key(s). Regardless of the encryption tool used, the
Receiving Party must - except as otherwise specifically provided below - keep
the “Confidential Source Code - Outside Attorneys’ Eyes Only” in an encrypted
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state whenever not being actively used for this litigation. For example, if the
encryption tool TrueCrypt is used, the Receiving Party will maintain the
“Confidential Source Code - Outside Attorneys’ Eyes Only” in a TrueCrypt
standard container, which will ensure that the “Confidential Source Code Outside Attorneys’ Eyes Only” is only decrypted in random-access memory
(RAM); additionally, the Receiving Party will only mount the TrueCrypt volume
containing the “Confidential Source Code - Outside Attorneys’ Eyes Only” to a
drive as needed to review the code; when a review session is over, the volume
will be dismounted.
(c)

Regardless of how a Designating Party produces “Confidential

Source Code - Outside Attorneys’ Eyes Only”, the Receiving Party will store any
“Confidential Source Code - Outside Attorneys’ Eyes Only” in a locked location
solely at the office of Outside Counsel for the Receiving Party or at the offices of
independent consultants or experts engaged by counsel or by the parties in this
litigation and qualified according to the procedures of Paragraph 7 of this
Protective Order. Access to the key(s) used to unlock any such location will be
restricted and, upon reasonable request, the Receiving Party will provide the
Designating Party with a list of the persons who have had access to such key(s).
The location must be marked with an “Access Restricted” notice. The Receiving
Party will maintain a log of all persons with access to the location to view
“Confidential Source Code - Outside Attorneys’ Eyes Only,” and will provide a
copy of the log to the Designating Party upon request if the Designating Party
has a justifiable belief that “Confidential Source Code - Outside Attorneys’ Eyes
Only” has been improperly disclosed. The Receiving Party will electronically
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access such “Confidential Source Code - Outside Attorneys’ Eyes Only” only
from a computer that is not connected to the Internet or a network, that is
password-protected and that, when not in use, is, kept in a locked location as
described in Paragraph 6(c). The password(s) used to protect any such
computer will be stored securely and access to such password(s) will be
restricted to the same individuals who have access to the password(s) or
decryption key(s) used to unlock encrypted media.
(d)

One such computer for each party receiving source code may also

be brought to depositions and court proceedings provided such materials are
maintained by Outside Counsel for the Receiving Party in an encrypted state
during transport to and from the deposition or court proceedings, and that the
Outside Counsel for the Receiving Party use such materials only when and to
the extent reasonably necessary for the furtherance of its claims and defenses
in this case.
(e)

If source code is produced on an encrypted CD(s), DVD(s), hard

drive(s), virtual drive(s), or other media, the Receiving Party shall store it in that
Receiving Party’s locked location as described in Paragraph 6(c) after storing the
contents on a computer that is not connected to the Internet or a network, that
is password-protected and that, when not in use, is kept in a locked location as
described in Paragraph 6(c). The Receiving Party shall not make any additional
copies of the Designating Party’s source code. The Receiving Party shall
permanently delete the source code from its computers and return any CD(s) or
other storage medium to the Producing Party within thirty (30) days of the
conclusion of this action by settlement or final judgment, including exhaustion of
13

all appeals.
(f)

Outside counsel and their staff or an expert or consultant for the

Receiving Party, qualified according to the procedures of Paragraph 7, shall be
entitled to take notes relating to the source code but may not copy the source
code into the notes. Any such notes shall be maintained at all times in a secure
location under the direct control of an individual authorized to view “Confidential
Source Code - Outside Attorneys’ Eyes Only” material, and shall be destroyed
within sixty (60) days of the conclusion of this action by settlement or final
judgment, including exhaustion of all appeals, as required under Paragraph 18
below.
(g)

Outside counsel and their staff or an expert or consultant for the

Receiving Party may print limited portions of “Confidential Source Code - Outside
Attorneys’ Eyes Only” as reasonably necessary to facilitate the
Receiving Party’s furtherance of its claims and defenses in this case. Each page
printed from “Confidential Source Code - Outside Attorneys’ Eyes Only” will bear
the notice “Confidential Source Code - Outside Attorneys’ Eyes Only.” The
Receiving Party may print a total of 50 pages from “Confidential Source Code Outside Attorneys’ Eyes Only.” Copies of printed pages for the purpose of filing
with the court or providing exhibits to expert reports shall not count toward the
total. The Receiving Party may request, in writing, permission form the
Designating Party to print additional pages. The Designating party may withhold
such permission only for good cause. While nothing in this Protective Order
prevents the Parties from including “Confidential Source Code - Outside
Attorneys’ Eyes Only” in court filings made under seal or from preparing exhibits
14

including “Confidential Source Code - Outside Attorneys’ Eyes Only” to be used
in expert reports or at depositions, hearings, trial, mediation or other proceedings
in this case, both parties will include information designated “Confidential Source
Code - Outside Attorneys’ Eyes Only” in such materials only when and to the
extent reasonably necessary for the furtherance of its claims and defenses in
this case.
(h)

Any printouts of “Confidential Source Code - Outside Attorneys’

Eyes Only” material shall be stored or viewed only at (i) the offices of outside
counsel for the receiving party; (ii) the offices of outside experts or consultants
qualified according to the procedures of Paragraph 7; (iii) the site where any
deposition is taken, (iv) the Court; or (v) any intermediate location necessary to
transport the information to one of the foregoing locations. Any printouts shall
be maintained at all times in a secure location under the direct control of an
individual authorized to view “Confidential Source Code - Outside Attorneys’
Eyes Only” material, and shall be destroyed within sixty (60) days of the
conclusion of this action by settlement or final judgment, including exhaustion of
all appeals, as required under Paragraph 18 below. Upon reasonable request of
the Designating Party, the Receiving Party will provide written confirmation of the
number of printouts made of, “Confidential Source Code - Outside Attorneys’
Eyes Only” material.
(i)

The parties shall cooperate to take such steps as are reasonably

necessary to protect information which contains or discloses the substances of
any portion of the designation source code from disclosure to the public,
including (subject to this Court’s rules) in the course of the trial of this action,
15

during any hearing in this action, and in any briefing or other filing in this
action.
7.

Clearance Procedure for Consultants, Experts and Graphics Firms.

Designated Material may be provided to an independent consultant or expert, or a firm
retained for the purpose of producing graphics or other visual aids, as described in
Paragraphs 4(b)-(c) and 5(b)-(c) only after five (5) business days following written noice
to the Designating Party of the proposed disclosure to the consultant or expert. With
the written notice shall be included a fully executed copy of the Acknowledgment
attached hereto as Exhibit A, completed by the consultant, expert or graphics firm. With
respect to the independent consultant or expert described in Paragraphs 4(b) and 5(b),
a current resume or curriculum vitae including any previous or current relationship
(personal or professional) with any of the parties, a listing of all papers or articles written
in the previous ten years, and list of persons or entities by which or on behalf of which
the consultant or expert has been retained in the preceding five (5) years, including a
brief description of the subject matter of each such retention and technology involved (if
applicable) must be provided. If the Designating Party objects, in writing, to disclosure
of Designated Material to the consultant, expert or graphics firm within the five (5) day
period, no disclosure of Designated Material may be made to such person or firm
pending resolution of the objection. If the parties cannot resolve the issue informally,
the party objecting to the proposed disclosure may, within ten (10) business days of
providing written objection to the party desiring to disclose Designated Materials to
its expert or consultant, seek an appropriate order from the Court disqualifying the
consultant or expert or protecting against the proposed disclosure to the consultant or
expert. Until the Court rules on the matter, no disclosure of Designated Material to the
16

consultant or expert shall be made.
8.

Expert Discovery. Drafts of expert reports, other writings generated by

testifying experts with respect to their work in this case, and communications between
outside counsel and experts relating to their work in this case are exempt from
discovery in this or any other litigation, unless relied on by the expert as a basis for his
or her expert testimony. Nothing in this Order shall be construed to limit the discovery
or examination of expert witnesses concerning documents or other information relied on
by the expert as a basis for his or her final opinions in this case, or compensation
received by such expert witness for his or her testimony, if any, including but not limited
to disclosures required by FED. R. CIV. P. 26(a)(2)(B)(vi).
9.

Third Party Confidential Information. The parties recognize that discovery

of a third-party may involve receipt of that party’s confidential information. Accordingly,
a third party may designate confidential information produced by it “Confidential,”
“Confidential - Outside Attorneys’ Eyes Only” or “Confidential Source Code - Outside
Attorneys’ Eyes Only” pursuant to the terms of this Protective Order and is subject to all
applicable provisions of this Protective Order with respect to any material or designated
(such Designated Material is hereinafter referred to specifically as “Third Party
Confidential Information”). In order to ensure adequate protection of Third Party
Confidential Information disclosed during depositions where counsel for the third party
in question is not present, such as the deposition of an expert witness retained by a
party, the party that issued the subpoena to the third party or otherwise requested Third
Party Confidential Information from the third party may provisionally designate any
portion of the deposition transcript discussing the Third Party Confidential Information
“Confidential,” “Confidential - Outside Attorneys’ Eyes Only” or “Confidential Source
17

Code - Outside Attorneys’ Eyes Only” in accordance with the procedures of Paragraph
1(d) and will promptly notify the third party in writing of the provisional designation, such
that the third party can confirm the appropriateness of the designation and take such
other measures it deems necessary to protect the confidentiality of its information.
10.

Filing Designated Material with the Court. All Designated Material filed

with this Court in this case by any party, including any pleadings, deposition transcripts,
exhibits, discovery responses, or other documents purporting to reproduce or
paraphrase Designated Material, shall be filed in accordance with D.C.COLO.LCivR 7.2.
11.

Errors in Designation. A Producing Party that inadvertently fails to

designate an item pursuant to this Protective Order at the time of the production shall
make a correction promptly after becoming aware of such error. Such correction and
notice thereof shall be made in writing accompanied by substitute copies of each item,
appropriately designated. Those individuals who reviewed the documents or
information prior to the notice of the failure to designate by the Producing Party shall, to
the extent reasonably feasible, return to the Producing Party or destroy all copies of
such undesignated documents and shall honor the provisions of this Protective Order
with respect to the use and disclosure of any confidential information contained in the
undesignated documents, from and after the date designation.
12.

Improper Disclosure. If information designated pursuant to this Protective

Order is disclosed to any person other than in the manner authorized by this Protective
Order, the party responsible for this disclosure must immediately bring all pertinent facts
relating to such disclosure to the attention of the Designating Party, without prejudice to
other rights and remedies of the Designating Party, and shall make every effort to
prevent further improper disclosure.
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13.

Objections to Designations. If at any time during the pendency of this

litigation any party claims that information is not appropriately designated (the
“Objecting Party”), the Objecting Party may serve notice of objection on the Designating
Party. Within ten (10) calendar days of receiving such notice, the Designating Party
shall respond in writing. If the Designating Party and the Objecting Party cannot resolve
the dispute, the Objecting Party may move for an order from the Court for redesignation of the disputed material. If the Objecting party moves for an order from the
Court for re-designation, the Designating Party shall bear the burden to establish that
the original designation complies with the guidelines and limitations described in this
Order. Until or unless the parties formally agree in writing to the re-designation of such
material, or until such time as the material is re-designated by order of the Court, all
Designated Materials will continue to receive confidential treatment pursuant to the
terms of this Protective order in accordance with the designation chosen by the
Designating Party.
14.

Use of Designated Material at Trial or Other Court Proceedings. This

Protective Order, insofar as it restricts the dissemination and use of Designated
Material, shall not apply to the introduction of evidence at trial or the display or
discussion of Designated Material during hearings held by the Court, including but not
limited to claim construction and summary judgment hearings. However, any party or
third party may seek appropriate court orders, including without limitation, an order
which restricts the use of any material covered by this Protective Order during the trial
or other Court proceeding, requests that portions of the transcript be sealed, or restricts
access of the public to certain portions of the trial or other Court proceeding.
15.

Inadmissibility of Designation. Unless the parties stipulate otherwise,
19

evidence of the existence or nonexistence of a designation under this Protective Order
shall not be admissible for any purpose, nor shall the designation or acceptance of any
information designated pursuant to this Protective Order constitute an admission or
acknowledgment that the material so designated is in fact proprietary, confidential, or a
trade secret.
16.

Inadvertent Production of Privileged Materials. Counsel shall make

reasonable efforts to identify materials protected by the attorney-client privilege or the
work product doctrine prior to the disclosure of any such materials. The inadvertent
production of any document or thing shall be without prejudice to any claim that such
material is protected by the attorney-client privilege or protected from discovery as work
product and no Producing Party shall be held to have waived any rights thereunder by
inadvertent production. If a Producing Party discovers that materials protected by the
attorney-client privilege or work product doctrine have been inadvertently produced,
counsel for the Producing Party shall promptly give written notice to counsel for the
Receiving Party. The Receiving Party shall take prompt steps to ensure that all known
copies of such material are returned to the Producing Party or destroyed with such
destruction certified in writing. The Receiving Party may afterward contest such claims
of privilege or work product as if the materials had not been produced, but shall not
assert that a waiver occurred as a result of the production.
17.

Notification of Subpoena, Document Request, or Order in Other Litigation.

If a Receiving Party is served with a subpoena, document request, or order issued in
other litigation that would compel disclosure of any information or items designated by
another party to this action as “Confidential,” “Confidential - Outside Attorneys’ Eyes
Only” or “Confidential Source Code - Outside Attorneys’ Eyes Only,” the Receving Party
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must so notify the Designating Party in writing immediately and in no event more than
five (5) days after receiving the subpoena, document request, or order. Such
notification must include a copy of the subpoena, document request, or order. The
Designating Party shall bear the burden and expense of seeking to protect the
requested material from production in the other litigation.
18.

Final Disposition of Designated Material. Within sixty (60) days following

termination of this litigation by settlement or final judgment, including exhaustion of all
appeals, the originals and all copies of Designated Material shall be either destroyed or
turned over to the Producing Party, or to its counsel. If Designated Material is
destroyed pursuant to this paragraph, counsel shall provide to opposing counsel a
certification identifying when and how the destruction was performed. Notwithstanding
this paragraph, outside counsel of record may retain pleadings, attorney and consultant
work product, and depositions (with exhibits) for archival purposes.
19.

Survival. The terms of this Protective Order shall survive termination of

this litigation.
Dated March 5, 2013, at Denver, Colorado.
BY THE COURT:

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