Skyhook Wireless, Inc. v. GOOGLE, INC.
AFFIDAVIT in Support re 31 MOTION for Protective Order. (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)(Maffei, Thomas)
Friday, January 21, 2011 12:17 PM
'Manning, Susan Baker'
Skyhook v. Google
Proposed Protective Order - Federal (5).DOC; Stipulation Regarding the Form of Document
In light of the upcoming deadline for our Preliminary Infringement Disclosure and accompanying document
production, we'd like to have a protective order in place, as well as a stipulation regarding the form of document
production. I'm attaching a proposed protective order, which is largely identical to the protective order in the
state case, with a few clarifications. I'm also attaching a proposed stipulation regarding the form of document
production, which is based on the letter agreements in the state case, with some clarification with respect to
database load files/cross-reference files and requests for native production.
Please let me know if Google will agree to these stipulations. Feel free to email me or call me if you would like
Lina F. Somait
Irell & Manella LLP
1800 Avenue of the Stars Suite 900 | Los Angeles, CA 90067
310.203.7598 direct | 310.203.7199 fax | email@example.com
rotective Order - Fe.
Regarding the Form..
UNITED STATES DISTRICT COURT
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
SKYHOOK WIRELESS, INC.,
Civil Action No.1:10-cv-11571-RWZ
STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS,
HIGHLY SENSITIVE CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS
PURPOSES AND LIMITATIONS
Disclosure and discovery activity in this action are likely to involve production of
confidential, proprietary, or private information for which special protection from public
disclosure and from use for any purpose other than prosecuting this litigation may be warranted.
Accordingly, the parties hereby stipulate to and petition the court to enter the following
Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket
protections on all disclosures or responses to discovery and that the protection it affords from
public disclosure and use extends only to the limited information or items that are entitled to
confidential treatment under the applicable legal principles.
Challenging Party: a Party or Non-Party that challenges the designation of
information or items under this Order.
"CONFIDENTIAL" Information or Items: information that qualifies for
protection under Massachusetts Rule of Civil Procedure 26(c), including information that a
Producing Party, including any Party to this action and any Non-Party producing information or
material voluntarily or pursuant to a subpoena or a court order, considers in good faith to
constitute confidential technical, sales, marketing, financial, or other commercially sensitive
information, whether embodied in physical objects, documents, or the factual knowledge of
persons, and which has been so designated by the Producing Party.
Counsel: Designated House Counsel and Outside Counsel of Record (as
well as the support staff of said Outside Counsel of Record).
Designated House Counsel: up to four (4) House Counsel for each
Receiving Party with responsibility for managing this litigation, who may have access to
"HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" information in this matter upon
the express condition that the Designated House Counsel shall not disclose "HIGHLY
CONFIDENTIAL - ATTORNEYS' EYES ONLY" information to any other employee of the
Receiving Party who has involvement in the Receiving Party's competitive decision-making. The
Designated House Counsel may, however, disclose "HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY" information to two (2) employees of a Party who either have
responsibility for making decisions dealing directly with the litigation in this action or in the
State Action, or who are assisting Outside Counsel in preparation for proceedings in this action
or in the State Action, provided that the two (2) employees do not have involvement in the
Receiving Party's competitive decision-making.
Designating Party: a Party or Non-Party that designates information or
items that it produces in disclosures or in responses to discovery as "CONFIDENTIAL,"
"HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY," or "HIGHLY CONFIDENTIAL SOURCE CODE."
Disclosure or Discovery Material: all items or information, regardless of
the medium or manner in which it is generated, stored, or maintained (including, among other
things, testimony, transcripts, and tangible things), that are produced or generated in disclosures
or responses to discovery in this matter.
Expert: a person with specialized knowledge or experience in a matter
pertinent to the litigation who (1) has been retained by a Party or its Counsel to serve as an
expert witness or as a consultant in this action, (2) is not a past or current employee of a Party or
of a Party's competitor, and (3) at the time of retention, is not anticipated to become an employee
of a Party or of a Party's competitor.
The State Action: The action entitled Skyhook Wireless, Inc. v. Google
Inc., Civil Action No. 2010-03652-BLS2, pending in the Suffolk Superior Court for the
Commonwealth of Massachusetts.
"HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" Information
or Items: extremely sensitive "Confidential Information or Items," disclosure of which to
another Party or Non-Party would create a substantial risk of serious harm that could not be
avoided by less restrictive means. HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
means CONFIDENTIAL INFORMATION that constitutes proprietary marketing, financial,
sales, web traffic, research and development, or technical data/information or commercially
sensitive competitive information, including, without limitation, confidential information
obtained from a Non-Party pursuant to a current Nondisclosure Agreement ("NDA"),
CONFIDENTIAL INFORMATION relating to future products not yet commercially released,
strategic plans, and settlement agreements or settlement communications, the disclosure of which
is likely to cause harm to the competitive position of the Producing Party. In determining
whether information should be designated as HIGHLY CONFIDENTIAL -ATTORNEYS'
EYES ONLY, each Party agrees to use such designation with restraint, in only limited
circumstances, and only in good faith.
"HIGHLY CONFIDENTIAL - SOURCE CODE" Information or Items:
extremely sensitive "Confidential Information or Items" representing computer code and
associated comments and revision histories, formulas, engineering specifications, or schematics
that define or otherwise describe in detail the algorithms or structure of software or hardware
designs, disclosure of which to another Party or Non-Party would create a substantial risk of
serious harm that could not be avoided by less restrictive means.
House Counsel: attorneys who are employees of a Party to this action.
House Counsel does not include Outside Counsel of Record or any other outside counsel.
Non-Party: any natural person, partnership, corporation, association, or
other legal entity not named as a Party to this action.
Outside Counsel of Record: attorneys (including those admitted pro hac
vice) who are not employees of a Party to this action but are retained to represent or advise a
Party to this action and have appeared in this action on behalf of that Party or are affiliated with a
law firm that has appeared on behalf of that Party.
Party: any party to this action, including all of its officers, directors,
employees, consultants, retained experts, and Counsel.
Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this action.
Professional Vendors: persons or entities that provide litigation support
services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and
organizing, storing, or retrieving data in any form or medium) and their employees and
Protected Material: any Disclosure or Discovery Material that is
designated as "CONFIDENTIAL," "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY,"
or as "HIGHLY CONFIDENTIAL - SOURCE CODE."
Receiving Party: a Party that receives Disclosure or Discovery Material
from a Producing Party.
The protections conferred by this Stipulation and Order cover not only Protected
Material (as defined above), but also (1) any information copied or extracted from Protected
Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any
testimony, conversations, or presentations by Parties or their Counsel that might reveal Protected
Material. However, the protections conferred by this Stipulation and Order do not cover the
following information: (a) any information that is in the public domain at the time of disclosure
to a Receiving Party or becomes part of the public domain after its disclosure to a Receiving
Party as a result of publication not involving a violation of this Order, including becoming part
of the public record through trial or otherwise; and (b) any information known to the Receiving
Party prior to the disclosure or obtained by the Receiving Party after the disclosure from a source
who obtained the information lawfully and under no obligation of confidentiality to the
Designating Party. Any use of Protected Material at trial shall be governed by a separate
agreement or order.
Even after final disposition of this litigation, the confidentiality obligations
imposed by this Order shall remain in effect until a Designating Party agrees otherwise in writing
or a court order otherwise directs. Final disposition shall be deemed to be the later of
(1) dismissal of all claims and defenses in this action and the State Action, with or without
prejudice; and (2) final judgment herein after the completion and exhaustion of all appeals,
rehearings, remands, trials or reviews of this action and the State Action, including the time
limits for filing any motions or applications for extension of time pursuant to applicable law.
DESIGNATING PROTECTED MATERIAL
Exercise of Restraint and Care in Designating Material for Protection.
Each Party or Non-Party that designates information or items for protection under this Order
must take care to limit any such designation to specific material that qualifies under the
appropriate standards. To the extent it is practical to do so, the Designating Party must designate
for protection only those parts of material, documents, items, or oral or written communications
that qualify - so that other portions of the material, documents, items, or communications for
which protection is not warranted are not swept unjustifiably within the ambit of this Order.
Mass, indiscriminate, or routinized designations are prohibited. Designations that
are shown to be clearly unjustified or that have been made for an improper purpose (e.g., to
unnecessarily encumber or retard the case development process or to impose unnecessary
expenses and burdens on other parties) expose the Designating Party to sanctions.
If it comes to a Designating Party's attention that information or items that it
designated for protection do not qualify for protection at all or do not qualify for the level of
protection initially asserted, that Designating Party must promptly notify all other parties that it
is withdrawing the mistaken designation.
Manner and Timing of Designations. Except as otherwise provided in this
Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered,
Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so
designated before the material is disclosed or produced.
Designation in conformity with this Order requires:
for information in documentary form (e.g., paper or electronic documents,
but excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing
Party affix the legend "CONFIDENTIAL," "HIGHLY CONFIDENTIAL - ATTORNEYS'
EYES ONLY," or "HIGHLY CONFIDENTIAL - SOURCE CODE" to each page that contains
protected material, or in the case of native documents, the Producing Party shall in some other
way clearly designate Disclosure or Discovery material that qualifies for protection under this
Order. If only a portion or portions of the material on a page qualifies for protection, the
Producing Party, to the extent practicable, also must clearly identify the protected portion(s)
(e.g., by making appropriate markings in the margins) and must specify, for each portion, the
level of protection being asserted.
A Party or Non-Party that makes original documents or materials available for
inspection need not designate them for protection until after the inspecting Party has indicated
which material it would like copied and produced. During the inspection and before the
designation, all of the material made available for inspection shall be deemed "HIGHLY
CONFIDENTIAL - ATTORNEYS' EYES ONLY." After the inspecting Party has identified the
documents it wants copied and produced, the Producing Party must determine which documents,
or portions thereof, qualify for protection under this Order. Then, before producing the specified
documents, the Producing Party must affix the appropriate legend ("CONFIDENTIAL,"
"HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY," or "HIGHLY CONFIDENTIAL SOURCE CODE") to each page that contains Protected Material, or in the case of native
documents, the Producing Party shall in some other way clearly designate Disclosure or
Discovery material that qualifies for protection under this Order.. If only a portion or portions of
the material on a page qualifies for protection, the Producing Party, to the extent practicable,
also must clearly identify the protected portion(s) (e.g., by making appropriate markings in the
margins) and must specify, for each portion, the level of protection being asserted.
for testimony given in deposition or in other pretrial or trial proceedings,
that the Designating Party identify on the record, before the close of the deposition, hearing, or
other proceeding, all protected testimony and specify the level of protection being asserted.
When it is impractical to identify separately each portion of testimony that is entitled to
protection and it appears that substantial portions of the testimony may qualify for protection, the
Designating Party may invoke on the record (before the deposition, hearing, or other proceeding
is concluded) a right to have up to 21 days to identify the specific portions of the testimony as to
which protection is sought and to specify the level of protection being asserted. Only those
portions of the testimony that are appropriately designated for protection within the 21 days shall
be covered by the provisions of this Stipulated Protective Order. Alternatively, a Designating
Party may specify, at the deposition or up to 21 days afterwards if that period is properly
invoked, that the entire transcript shall be treated as "CONFIDENTIAL" or "HIGHLY
CONFIDENTIAL - ATTORNEYS' EYES ONLY."
Parties shall give the other parties notice if they reasonably expect a deposition,
hearing or other proceeding to include Protected Material so that the other parties can ensure that
only authorized individuals who have signed the "Acknowledgment and Agreement to Be
Bound" (Exhibit A) are present at those proceedings. The use of a document as an exhibit at a
deposition shall not in any way affect its designation as "CONFIDENTIAL," "HIGHLY
CONFIDENTIAL - ATTORNEYS' EYES ONLY," or "HIGHLY CONFIDENTIAL - SOURCE
Transcripts containing Protected Material shall have an obvious legend on the title
page that the transcript contains Protected Material, and the title page shall be followed by a list
of all pages (including line numbers as appropriate) that have been designated as Protected
Material and the level of protection being asserted by the Designating Party. The Designating
Party shall inform the court reporter of these requirements. Any transcript that is prepared before
the expiration of a 21-day period for designation shall be treated during that period as if it had
been designated "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" in its entirety
unless otherwise agreed. After the expiration of that period, the transcript shall be treated only as
actually designated. Pages of transcribed deposition testimony or exhibits to depositions that
reveal Protected Material must be separately bound by the court reporter and may not be
disclosed to anyone except as permitted under this Stipulated Protective Order.
for information produced in some form other than documentary and for
any other tangible items, that the Producing Party affix in a prominent place on the exterior of
the container or containers in which the information or item is stored the legend
"CONFIDENTIAL," "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY," or
"HIGHLY CONFIDENTIAL - SOURCE CODE." If only a portion or portions of the
information or item warrant protection, the Producing Party, to the extent practicable, shall
identify the protected portion(s) and specify the level of protection being asserted.
Failures to Designate. If timely corrected, a failure to designate qualified
information or items does not, standing alone, waive the Designating Party's right to secure
protection under this Order for such material. Upon timely correction of a designation, the
Receiving Party must make reasonable efforts to assure that the material is treated in accordance
with the provisions of this Order.
CHALLENGING CONFIDENTIALITY DESIGNATIONS
Timing of Challenges. Any Party or Non-Party may challenge a
designation of confidentiality at any time. Unless a prompt challenge to a Designating Party's
confidentiality designation is necessary to avoid foreseeable, substantial unfairness, unnecessary
economic burdens, or a significant disruption or delay of the litigation, a Party does not waive its
right to challenge a confidentiality designation by electing not to mount a challenge promptly
after the original designation is disclosed.
Meet and Confer. The Challenging Party shall initiate the dispute
resolution process by providing written notice of each designation it is challenging and
describing the basis for each challenge. To avoid ambiguity as to whether a challenge has been
made, the written notice must recite that the challenge to confidentiality is being made in
accordance with this specific paragraph of the Protective Order. The parties shall attempt to
resolve each challenge in good faith and must begin the process by conferring directly (in voice
to voice dialogue; other forms of communication are not sufficient) within 7 calendar days of the
date of service of notice. In conferring, the Challenging Party must explain the basis for its
belief that the confidentiality designation was not proper. The Designating Party may have 3
calendar days after the date of the conference to review the designated material, to reconsider the
circumstances, and, if no change in designation is offered, to explain the basis for the chosen
designation. A Challenging Party may proceed to the next stage of the challenge process only if
it has engaged in this meet and confer process first or establishes that the Designating Party is
unwilling to participate in the meet and confer process in a timely manner.
Judicial Intervention. If the Parties cannot resolve a challenge without
court intervention, the Designating Party shall file and serve a motion for (a) a protective order
under Federal Rule of Civil Procedure 26(c), or (b) impoundment in accordance with Local Rule
7.2, within 21 calendar days of the initial notice of challenge or within 14 calendar days of the
parties agreeing that the meet and confer process will not resolve their dispute, whichever is
earlier. Each such motion must be accompanied by a competent declaration affirming that the
movant has complied with the meet and confer requirements imposed in the preceding
paragraph. Failure by the Designating Party to make such a motion including the required
declaration within 21 calendar days (or 14 calendar days, if applicable) shall automatically waive
the confidentiality designation for each challenged designation. In addition, the Challenging
Party may file a motion challenging a confidentiality designation at any time if there is good
cause for doing so, including a challenge to the designation of a deposition transcript or any
portions thereof. Any motion brought pursuant to this provision must be accompanied by a
competent declaration affirming that the movant has complied with the meet and confer
requirements imposed by the preceding paragraph.
The burden of persuasion in any such challenge proceeding shall be on the
Designating Party. Frivolous challenges and those made for an improper purpose (e.g., to harass
or impose unnecessary expenses and burdens on other parties) may expose the Challenging Party
to sanctions. Unless the Designating Party has waived the confidentiality designation by failing
to file a motion to retain confidentiality as described above, all parties shall continue to afford
the material in question the level of protection to which it is entitled under the Producing Party's
designation until the court rules on the challenge.
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ACCESS TO AND USE OF PROTECTED MATERIAL
Basic Principles. A Receiving Party may use Protected Material that is
disclosed or produced by another Party or by a Non-Party only in connection with prosecuting,
defending, or attempting to settle this action or the State Action. Protected Material disclosed or
produced in the State Action is deemed disclosed or produced in this action and is subject to this
Stipulated Protective Order to the extent it differs from the Stipulated Protective Order in the
State Action. Such Protected Material may be disclosed only to the categories of persons and
under the conditions described in this Order. When the litigation has been terminated, a
Receiving Party must comply with the provisions of section 14 below (FINAL DISPOSITION).
All produced Protected Material must be stored and maintained by a Receiving
Party at a location and in a secure manner that ensures that access is limited to the persons
authorized under this Order.
Disclosure of "CONFIDENTIAL" Information or Items. Unless otherwise
ordered by the court or permitted in writing by the Designating Party, a Receiving Party may
disclose any information or item designated "CONFIDENTIAL" only to:
the Receiving Party's Outside Counsel of Record in this action or the State
Action, as well as employees of said Outside Counsel of Record to whom it is reasonably
necessary to disclose the information for this litigation;
four (4) of the Receiving Party's officers, directors, or employees (in the
aggregate) to whom disclosure is reasonably necessary for this litigation, plus the Receiving
Party's Designated House Counsel;
the court and its personnel (including the court and its personnel in the
court reporters and their staff, professional jury or trial consultants, and
Professional Vendors to whom disclosure is reasonably necessary for this litigation (including
the litigation between the parties in the State Action);
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Experts (as defined in this Order) of the Receiving Party to whom
disclosure is reasonably necessary for this litigation and who have signed the "Acknowledgment
and Agreement to Be Bound" (Exhibit A), and their regularly employed support personnel to
whom it is reasonably necessary to disclose the information for this litigation and who have
signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A);
during their depositions, witnesses in the action to whom disclosure is
reasonably necessary and who have signed the "Acknowledgment and Agreement to Be Bound"
(Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court; and
the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information.
Disclosure of "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES
ONLY" Information or Items. Unless otherwise ordered by the court or permitted in writing by
the Designating Party, a Receiving Party may disclose any information or item designated
"HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" only to:
the Receiving Party's Designated House Counsel or Outside Counsel of
Record in this action or the State Action, as well as employees of said Outside Counsel of
Record to whom it is reasonably necessary to disclose the information for this litigation,
provided however that each Party's Designated House Counsel may disclose "HIGHLY
CONFIDENTIAL - ATTORNEYS' EYES ONLY" information to two (2) employees of a Party
who either have responsibility for making decisions dealing directly with the litigation in this
action or in the State Action, or who are assisting Outside Counsel in preparation for proceedings
in this action or in the State Action, provided that the two (2) employees do not have
involvement in the Receiving Party's competitive decision-making;
the court and its personnel (including the court and its personnel in the
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court reporters and their staff, professional jury or trial consultants, and
Professional Vendors to whom disclosure is reasonably necessary for this litigation (including
the litigation between the parties in the State Action);
Experts (as defined in this Order) of the Receiving Party (i) to whom
disclosure is reasonably necessary for this litigation, (ii) who have signed the "Acknowledgment
and Agreement to Be Bound" (Exhibit A), and (iii) as to whom the procedures set forth in
paragraph 7.4, below, have been followed, and their regularly employed support personnel to
whom it is reasonably necessary to disclose the information for this litigation and who have
signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A); and
the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information.
Except as may be otherwise ordered by the court, any person may be
examined as a witness at deposition and may testify concerning all Protected Information of
which such person has prior knowledge.
Procedures for Approving or Objecting to Disclosure of "HIGHLY
CONFIDENTIAL - ATTORNEYS' EYES ONLY" or "HIGHLY CONFIDENTIAL - SOURCE
CODE" Information or Items to Experts.
Information designated by the Producing Party under any category of
Protected Material and such copies of this information as are reasonably necessary for
maintaining, defending or evaluating this litigation or the State Action may be furnished and
disclosed to the Receiving Party's Experts (as defined in this Order) and their necessary support
No disclosure of Protected Material to an Expert adviser or their necessary
support personnel shall occur until (i) that person has signed the form attached hereto as Exhibit
A; (ii) a signed copy has been provided to the Producing Party; and (iii) to the extent there has
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been an objection under paragraph 7.4(c), that objection has been resolved as provided for
A Receiving Party desiring to disclose Protected Material to an Expert
shall also give prior written notice by email to the Producing Party, who shall have ten (10)
business days after such notice is given to object in writing. At the time the written notice is
given, the Receiving Party desiring to disclose Protected Material to an Expert must provide the
following information, for each Expert to whom disclosure is sought: name, address, curriculum
vitae, current employer, employment history for the past five years, and a listing of cases in
which the witness has testified as an expert at trial or by deposition within the preceding five
years, and an identification of any patents or applications for patents in which the Expert is
identified as an inventor or applicant, which the Expert is involved in the prosecution or
maintenance thereof, or any patents or patent application in which the Expert has any pecuniary
interest. No Protected Material shall be disclosed to such Expert(s) or supporting personnel until
after the expiration of the foregoing notice period.
A Party objecting to disclosure of Protected Material to an Expert shall
state with particularity the ground(s) of the objection and the specific categories of documents
that are the subject of the objection. The objecting Party's consent to the disclosure of Protected
Material to an Expert shall not be unreasonably withheld, and its objection must be based on that
Party's good faith belief that disclosure of its Protected Material to the Expert will result in
specific business or economic harm to that Party.
If after consideration of the objection, the Party desiring to disclose the
Protected Material to an Expert refuses to withdraw the Expert, that Party shall provide notice to
the objecting Party. Thereafter, the objecting Party shall move the Court, within ten (10)
business days of receiving such notice, for a ruling on its objection. A failure to file a motion
within the ten (10) business day period shall operate as an approval of disclosure of the Protected
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Material to the Expert. The parties agree to cooperate in good faith to shorten the time frames
set forth in this paragraph if necessary to abide by any discovery or briefing schedules.
The objecting Party shall have the burden of showing to the Court "good cause" for
preventing the disclosure of its Protected Material to the Expert. This "good cause" shall include
a particularized showing that: (1) the Protected Material is confidential commercial information,
and (2) disclosure of the Protected Material would result in a clearly defined and serious injury to
the objecting Party's business, and (3) the proposed Expert is in a position to allow the Protected
Material to be disclosed to the objecting Party's competitors, or (4) that the Expert's access to
Protected Material may create other confidentiality or business risks in connection with otherinterests tied to the Expert.
To the extent production of source code becomes necessary in this case, a
Producing Party may designate source code as "HIGHLY CONFIDENTIAL - SOURCE CODE"
if it constitutes confidential, proprietary or trade secret source code. If the confidential,
proprietary or trade secret source code is included within, but does not comprise the entirety of,
other documents or tangible things, then, to the extent practicable, only that portion of the
document or tangible thing that constitutes confidential, proprietary or trade secret source code
may be designated as "HIGHLY CONFIDENTIAL - SOURCE CODE."
Source Code, to the extent requested with particularity by the
Receiving Party and agreed to be provided by the Producing Party, shall be made available in
fully-searchable, native electronic format for inspection at either the Los Angeles or Boston
offices of the Producing Party's outside counsel of record in this action, at the Receiving Party's
option. Source Code will be loaded on a single, non-networked computer that is password
protected and maintained in a secure, locked area. Use by the Receiving Party of any
input/output device (e.g., USB memory stick, CDs, floppy disk, portable hard drive, etc.) is
prohibited while accessing the computer containing the Source Code. The computer containing
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Source Code will be made available for inspection during regular business hours, upon
reasonable notice to the Producing Party, which shall not be less than 3 business days in advance
of the requested inspection.
The Receiving Party's outside counsel and/or experts may request
that commercially available licensed software tools for viewing, searching, or analyzing (but not
for editing) source code be installed on the secured computer. The Receiving Party must provide
the Producing Party with the CD or DVD containing such software tool(s) at least four business
days in advance of the inspection. The Producing Party will not unreasonably refuse to timely
install the provided software on the computer containing Source Code.
The Receiving Party's outside counsel and/or expert shall be
entitled to take notes relating to the source code but may not copy the source code into the notes.
The Receiving Party's outside counsel and/or expert may bring into the inspection room and use
electronic equipment, including laptops, that are reasonably necessary for taking such notes, and
for communications between and among the Receiving Party's outside counsel and/or experts.
The Producing Party agrees to provide wired or wireless Internet access within the inspection
room for such electronic equipment, and to provide a telephone land-line to the extent the
Receiving Party is unable to use cellular telephones from within the inspection room. 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.
No person shall copy, e-mail, transmit, upload, download, print,
photograph or otherwise duplicate any portion of the designated Source Code, except as the
Receiving Party may request a reasonable number of pages of Source Code to be printed by the
Producing Party, but only if and to the extent necessary and in no event may the Receiving Party
print more than 50 consecutive pages and no more than 1,000 pages of source code in aggregate
during the duration of the case without prior written approval by the Producing Party or order of
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the Court. Within 5 business days or such additional time as necessary due to volume requested,
the Producing Party will provide the requested material on watermarked or colored paper bearing
Bates numbers and the legend "HIGHLY CONFIDENTIAL- SOURCE CODE" unless objected
to as discussed below. The printed pages shall constitute part of the source code produced by the
Producing Party in this action. At the Receiving Party's request, up to two additional sets (or
subsets) of printed source may be requested and provided by the Producing Party in a timely
If the Producing Party objects that the printed portions are not
reasonably necessary to any case preparation activity, the Producing Party shall make such
objection known to the Receiving Party within 5 business days. If after meeting and conferring
the Producing Party and the Receiving Party cannot resolve the objection (where such meet-andconfer need not take place in person), the Producing Party shall be entitled to seek a Court
resolution of whether the printed source code in question is not reasonably necessary to any case
preparation activity. Contested source code print outs need not be produced to the requesting
Party until that matter is resolved by the Court.
Any printed pages of Source Code, and any other documents or
things reflecting Source Code that have been designated by the Producing Party as "HIGHLY
CONFIDENTIAL - SOURCE CODE" may not be copied, digitally imaged or otherwise
duplicated, except in limited excerpts necessary to attach as exhibits to depositions, expert
reports, or court filings as discussed below.
Any paper copies designated "HIGHLY CONFIDENTIAL-
SOURCE CODE" 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 who have been approved to
access Source Code; (iii) the site where any deposition is taken; (iv) the Court; or (v) any
intermediate location necessary to transport the information to a hearing, trial or deposition. Any
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such paper copies shall be maintained at all times in secure location under the direct control of
counsel responsible for maintaining the security and confidentiality of the designated materials.
A list of names of persons who will view the source code will be
provided to the Producing Party in conjunction with any written (including email) notice
requesting inspection. The Receiving Party shall maintain a daily log of the names of persons
who enter the locked room to view the source code and when they enter and depart. The
Producing Party shall be entitled to have a person observe all entrances and exits from the source
code viewing room, and to a copy of the log.
Unless otherwise agreed in advance by the parties in writing,
following each inspection, the Receiving Party's outside counsel and/or experts shall remove all
notes, documents, laptops, and all other materials from the room that may contain work product
and/or attorney-client privileged information. The Producing Party shall not be responsible for
any items left in the room following each inspection session.
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 other computers or peripheral equipment.
The Receiving Party will not transmit any source code in any way from the location of the source
Only the following individuals shall have access to "HIGHLY
CONFIDENTIAL - SOURCE CODE" materials, absent the express written consent of the
Producing Party or further court order:
Outside counsel of record for the parties to this action and
the State Action, including any attorneys, paralegals, technology specialists and clerical
employees of their respective law firms;
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Up to three (3) outside experts or consultants per Party,
pre-approved in accordance with Paragraphs 7.4(a)-(f) and specifically identified as
eligible to access Source Code;
The Court, its technical advisor (if one is appointed), the
jury, court personnel, and court reporters or videographers recording testimony or other
proceedings in this action;
While testifying at deposition or trial in this action only:
(i) any current or former officer, director or employee of the Producing Party or original
source of the information; (ii) any person designated by the Producing Party to provide
testimony pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure; and/or
(iii) any person who authored, previously received, or was directly involved in creating,
modifying, or editing the source code, as evident from its face or reasonably certain in
view of other testimony or evidence. Persons authorized to view Source Code pursuant
to this sub-paragraph shall not retain or be given copies of the Source Code except while
The Receiving Party's outside counsel shall maintain a log of all copies of
the source code (received from a Producing Party) that are delivered by the Receiving Party to
any qualified person under Paragraph g above. The log shall include the names of the recipients
and reviewers of copies and locations where the copies are stored;
Except as provided in this paragraph, the Receiving Party may not create
electronic images, or any other images, of the source code from the paper copy for use on a
computer (e.g., may not scan the source code to a PDF or photograph the code). The Receiving
Party may create an electronic copy or image of excerpts of source code in a pleading, exhibit,
expert report, discovery document, deposition transcript, other Court document, or any drafts of
these documents ("SOURCE CODE DOCUMENTS"). The Receiving Party shall only include
such excerpts as are reasonably necessary for the purposes for which such part of the source code
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is used. Images or copies of source code shall not be included in correspondence between the
parties (references to production numbers shall be used instead) and shall be omitted from
pleadings and other papers except to the extent permitted herein. The Receiving Party may
create an electronic image of a selected portion of the source code only when the electronic file
containing such image has been encrypted using commercially reasonable encryption software
including password protection. The communication and/or disclosure of electronic files
containing any portion of source code shall at all times be limited to individuals who are
authorized to see source code under the provisions of this Protective Order. The Receiving Party
shall maintain a log of all electronic images and paper copies of source code in its possession or
in the possession of its retained consultants, including the names of the recipients and reviewers
of any electronic or paper copies and the locations where the copies are stored. Additionally, all
electronic copies must be labeled "HIGHLY CONFIDENTIAL - SOURCE CODE."
To the extent portions of source code are quoted in a SOURCE CODE
DOCUMENT, either (1) the entire document will be stamped and treated as HIGHLY
CONFIDENTIAL-SOURCE CODE or (2) those pages containing quoted source code will be
separately bound, and stamped and treated as HIGHLY CONFIDENTIAL-SOURCE CODE.
All paper copies of source code shall be securely destroyed if they are no
longer in use. 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.
The Receiving Party's outside counsel may only disclose a copy of the
source code to individuals specified in section (a)(8) above (e.g., source code may not be
disclosed to in-house counsel).
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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
IN OTHER LITIGATION
If a Party is served with a subpoena or a court order issued in other litigation
(excluding the State Action) that compels disclosure of any information or items designated in
this action as "CONFIDENTIAL," "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES
ONLY" or "HIGHLY CONFIDENTIAL - SOURCE CODE" that Party must:
promptly notify in writing the Designating Party. Such notification shall
include a copy of the subpoena or court order;
promptly notify in writing the party who caused the subpoena or order to
issue in the other litigation that some or all of the material covered by the subpoena or order is
subject to this Protective Order. Such notification shall include a copy of this Stipulated
Protective Order; and
cooperate with respect to all reasonable procedures sought to be pursued
by the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with the
subpoena or court order shall not produce any information designated in this action as
"CONFIDENTIAL," "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY," or
"HIGHLY CONFIDENTIAL - SOURCE CODE" before a determination by the court from
which the subpoena or order issued, unless the Party has obtained the Designating Party's
permission. The Designating Party shall bear the burden and expense of seeking protection in
that court of its confidential material - and nothing in these provisions should be construed as
authorizing or encouraging a Receiving Party in this action to disobey a lawful directive from
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A NON-PARTY'S PROTECTED MATERIAL SOUGHT TO BE
PRODUCED IN THIS LITIGATION
The terms of this Order are applicable to information produced by a Non-
Party in this action and designated as "CONFIDENTIAL," "HIGHLY CONFIDENTIALATTORNEYS' EYES ONLY," or "HIGHLY CONFIDENTIAL - SOURCE CODE." Such
information produced by Non-Parties in connection with this litigation is protected by the
remedies and relief provided by this Order. Nothing in these provisions should be construed as
prohibiting a Non-Party from seeking additional protections.
In the event that a Party is required, by a valid discovery request, to
produce a Non-Party's confidential information in its possession, and the Party is subject to an
agreement with the Non-Party not to produce the Non-Party's confidential information, then the
promptly notify in writing the Requesting Party and the Non-Party
that some or all of the information requested is subject to a confidentiality agreement with a
promptly provide the Non-Party with a copy of the Stipulated
Protective Order in this litigation, the relevant discovery request(s), and a reasonably specific
description of the information requested; and
make the information requested available for inspection by the
If the Non-Party fails to object or seek a protective order from this court
within 14 days of receiving the notice and accompanying information, the Receiving Party may
produce the Non-Party's confidential information responsive to the discovery request. If the
Non-Party timely seeks a protective order, the Receiving Party shall not produce any information
in its possession or control that is subject to the confidentiality agreement with the Non-Party
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before a determination by the court. Absent a court order to the contrary, the Non-Party shall
bear the burden and expense of seeking protection in this court of its Protected Material.
UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
Protected Material to any person or in any circumstance not authorized under this Stipulated
Protective Order, the Receiving Party must immediately (a) notify in writing the Designating
Party of the unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of
the Protected Material, (c) inform the person or persons, to whom unauthorized disclosures were
made of all the terms of this Order, and (d) request such person or persons to execute the
"Acknowledgment and Agreement to Be Bound" that is attached hereto as Exhibit A.
PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
When a Producing Party gives notice in good faith to the Receiving Party that
certain produced material is subject to a claim of privilege or other protection, the Receiving
Party must promptly return or destroy the specified information and any copies it has; must not
use or disclose the information until the claim is resolved; must take reasonable steps to retrieve
the information if the Party disclosed it before being notified; and may promptly present the
information to the court under seal for a determination of the claim. The Producing Party must
preserve the information until the claim is resolved. This provision is not intended to modify
whatever procedure may be established in an e-discovery order that provides for production
without prior privilege review. Insofar as the parties reach an agreement on the effect of
disclosure of a communication or information covered by the attorney-client privilege or work
product protection, the parties may incorporate their agreement in the stipulated protective order
submitted to the court. An agreement on the effect of disclosure of a communication or
information covered by the attorney-client privilege or work product protection is binding on the
parties to the agreement, but not on other parties unless the agreement is incorporated into a
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court order. Nothing in this section shall be used by the Producing Party to unduly or in bad
faith delay the litigation.
Right to Further Relief. Nothing in this Order abridges the right of any
Party or person to seek its modification by written agreement of the parties or by the court.
Right to Assert Other Objections. By stipulating to the entry of this
Protective Order no Party waives any right it otherwise would have to object to disclosing or
producing any information or item on any ground not addressed in this Stipulated Protective
Order. Similarly, no Party waives any right to object on any ground to use in evidence of any of
the material covered by this Protective Order.
Export Control. Disclosure of Protected Material shall be subject to all
applicable laws and regulations relating to the export of technical data contained in such
Protected Material, including the release of such technical data to foreign persons or nationals in
the United States or elsewhere. The Producing Party shall be responsible for identifying any
such controlled technical data, and the Receiving Party shall take measures necessary to ensure
No Protective Material May Leave the United States of America. No
Protected Material may leave the territorial boundaries of the United States of America. Without
limitation, this prohibition extends to Protected Material (including copies) in physical and
electronic form. The viewing of Protected Material through electronic means outside the
territorial limits of the United States of America is similarly prohibited. Notwithstanding this
prohibition, Protected Material, exclusive of material designated "HIGHLY CONFIDENTIAL SOURCE CODE," may be taken outside the territorial limits of the United States if it is
reasonably necessary for a deposition taken in a foreign country. The restrictions contained
within this paragraph may be amended through the consent of the Producing Party to the extent
that such agreed to procedures conform with applicable export control laws and regulations.
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Filing Protected Material. Without written permission from the
Designating Party or a court order secured after appropriate notice to all interested persons, a
Receiving Party may not file any Protected Material in the public record in this action or in the
State Action. A Receiving Party that seeks to impound any Protected Material in this action
must comply with Local Rule 7.2. Protected Material may only be impounded pursuant to a
court order authorizing the impoundment of the specific Protected Material at issue. If a
Receiving Party's request to impound Protected Material under Local Rule 7.2 is denied by the
court, then the Receiving Party may not file the Protected Material in the public record unless
otherwise instructed by the court.
Right To Advise. Nothing herein shall preclude Outside Counsel from
using Protected Material to consult with, advise or counsel the Party it represents, provided,
however, that nothing in this section 13.6 shall be construed to permit disclosure of information
designated CONFIDENTIAL, HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY, or
HIGHLY CONFIDENTIAL - SOURCE CODE otherwise prohibited by this Order.
Expert Discovery. Testifying Experts shall not be subject to discovery on
any draft of their reports in this action or the State Action and such draft reports, notes, outlines,
or any other writings leading up to an issued report(s) in this action or the State Action are
exempt from discovery. In addition, all communications to and from a testifying Expert, and all
materials generated by a testifying Expert with respect to that person's work, in connection with
this action or the State Action, are exempt from discovery unless relied upon by the Expert in
forming any opinions in this action or the State Action.
Privilege Log. No Party shall be required to identify on their respective
privilege log any document or communication dated on or after September 15, 2010, which
absent this provision, the Party would have been obligated to so identify on said privilege log.
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Within 60 days after the final disposition of this action, as defined in paragraph 4,
each Receiving Party must return all Protected Material to the Producing Party or destroy such
material. As used in this subdivision, "all Protected Material" includes all copies, abstracts,
compilations, summaries, and any other format reproducing or capturing any of the Protected
Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all
pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda,
correspondence, deposition and trial exhibits, expert reports, attorney work product, and
consultant and expert work product, even if such materials contain Protected Material. Any such
archival copies that contain or constitute Protected Material remain subject to this Protective
Order as set forth in Section 4.
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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD
Attorneys for Plaintiff Skyhook Wireless, Inc.
Attorneys for Defendant Google Inc.
PURSUANT TO STIPULATION, IT IS SO ORDERED
Hon. Rya W. Zobel
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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I, __________________ [print or type full name], of _______________________
[print or type full address], declare under penalty of perjury that I have read in its entirety and
understand the Stipulated Protective Order that was issued by the United States District Court for
the District of Massachusetts on ______________ [date] in the case of Skyhook Wireless, Inc. v.
Google Inc., Case No. 1:10-cv-11571. I agree to comply with and to be bound by all the terms
of this Stipulated Protective Order and I understand and acknowledge that failure to so comply
could expose me to sanctions and punishment in the nature of contempt. I solemnly promise that
I will not disclose in any manner any information or item that is subject to this Stipulated
Protective Order to any person or entity except in strict compliance with the provisions of this
I further agree to submit to the jurisdiction of the United States District Court for
the District of Massachusetts for the purpose of enforcing the terms of this Stipulated Protective
Order, even if such enforcement proceedings occur after termination of this action.
I hereby appoint _______________________ [print or type full name] of
_____________________________________ [print or type full address and telephone number]
as my Massachusetts agent for service of process in connection with this action or any
proceedings related to enforcement of this Stipulated Protective Order.
City and State where sworn and signed:
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THE FORM OF DOCUMENT PRODUCTION
Document Image Format. Each document shall be produced in single page Tagged
Image File Format ("TIFF"), regardless of whether such documents are stored by the
parties in the ordinary course of business in electronic or hard copy form. Each TIFF
image file should be one page and should reflect how the source document would appear
if printed to hard copy.
a. Database Load Files/Cross-Reference Files. Documents shall be provided
with (1) a Concordance delimited load file(s) and (2) an Opticon delimited
cross-reference file(s) showing document breaks and additional fields as
identified in Section 4 below.
Example of Concordance Delimited File:
þBegDocþ þEndDocþ þBegAttachþ þEndAttachþ
Example of Opticon Delimited File:
b. Hard Copy Documents. The production of hard copy documents shall
include a cross-reference file that indicates document breaks and sets forth the
Custodian associated with each produced document.
c. File Name. Each document image file shall be named with the unique Bates
Number of the page of the document in question, followed by the extension
"TIF." File names should not be more than fifteen characters long or contain
spaces or underscore symbols.
d. Document Unitization. If a document is more than one page, the unitization
of the document and any attachments and/or affixed notes shall be maintained
as they existed in the original document.
e. Color. Documents shall be produced as black and white TIFF images. A
party may request that a reasonable number of documents be produced in a
color .PDF or .JPG format upon review of the other party's production. The
parties reserve their respective rights to object to any such request.
Searchable Text. In addition to TIFF images, each production will include text files
corresponding to the TIFF files described above.
a. Electronic Documents. The full text of each native electronic document shall
be extracted ("Extracted Text") and produced in a text file. The Extracted
Text shall be provided in searchable ASCII text format (or Unicode text
format if the text is in a foreign language) and shall be named with the unique
Bates Number of the first page of the corresponding TIFF document followed
by the extension ".txt".
The parties are exempted from producing extracted text for electronically
stored documents that do not have extractable text. Such documents shall be
produced in TIFF format without extracted text and need not be scanned using
Optical Character Recognition.
b. Hard Copy. Hard copy documents shall be scanned using Optical Character
Recognition technology and searchable ASCII text files shall be produced (or
Unicode text format if the text is in a foreign language). Each file shall be
named with the unique Bates Number of the first page of the corresponding
TIFF document followed by the extension ".txt".
c. Redacted Documents. Redacted documents shall be scanned using Optical
Character Recognition technology and searchable ASCII text files shall be
produced (or Unicode text format if the text is in a foreign language). Each
file shall be named with the unique Bates Number of the first page of the
corresponding TIFF document followed by the extension ".txt”. Extracted
text will not be provided for redacted documents.
Production Media. Documents shall be produced on external hard drives or readily
accessible computer or electronic media (the "Production Media"). Each piece of
Production Media shall identify a production number corresponding to the production
with which the documents on the Production Media are associated (e.g., "V001",
"V002"), as well as the volume of the material in that production (e.g., "-001", "-002").
For example, if the first production wave by a party comprises document images on three
hard drives, the party shall label each hard drive in the following manner: "V001-001",
"V001-002", and "V001-003". Each piece of Production Media shall also identify: (1)
the producing party's name; (2) the production date; (3) the Bates Number range of the
materials contained on the Production Media; and (4) the set(s) of requests for production
for which the documents are being produced.
Metadata. For all Electronic Documents, an ASCII text file (or Unicode text format if
the metadata text is in a foreign language) shall be produced setting forth the Metadata
Fields listed in Appendix A. With respect to the "DOCTYPE" metadata field, Skyhook's
production will identify the document type by extension (e.g., .ppt, .doc, .htm, etc.).
With respect to the "TITLE/SUBJECT" metadata field, Skyhook's production will
identify the document's title, subject and filename (where available) in separate metadata
fields. Metadata shall be produced in a standard, delimited load file.
For the avoidance of doubt, a party is not obligated to produce metadata from a document
if metadata does not exist in the document, or if the metadata is not machine-extractable.
For redacted Electronic Documents, metadata fields must be produced only to the extent
such fields will not divulge redacted information. The parties reserve the ability to
request that additional Metadata Fields be set forth or provided for certain specified
Electronic Documents upon review of the other party's production. The parties reserve
their respective rights to object to any such request
Duplicates. To the extent duplicate emails and un-attached documents (based on MD5
or SHA-1 hash values at the document level) reside within a party's data set, each party is
only required to produce a single copy of the responsive email or un-attached document.
In the case of documents that are attached to emails, however, those documents should
always be matched with the parent email, whether or not the document is duplicated
elsewhere in the production.
Systems/Databases. Exports from proprietary databases should be produced in a
delimited native format. Otherwise, Systems/Databases will be the subject of additional
meet & confers as needed.
Request for Native Production. To the extent information contained therein is not
readable or usable in printed form, the following documents shall be produced in native
form: standalone database files such as Microsoft Excel or Access files; project
management files such as Microsoft Project files; CAD or similar engineering drawings
or schematics; source code or other software; complete functional copies of websites.
The parties shall not unreasonably refuse a request for the production of other documents
in native form. The parties agree that sales information and large quantities of data
contained in Excel or Access format are not readable or usable in printed form and will
be produced in native form.
Voice Mails, lMs and Text Messages. The parties have agreed that no voice mails,
instant messages, or cell phone text message will be preserved, searched for, or produced
under any circumstances.
Beginning Bates number assigned to each document.
Ending Bates number assigned to each document.
Beginning Bates number assigned to the group of documents to which
the parent document and any attachment documents are associated.
Ending Bates number assigned to the group of documents to which the
parent document and any attachment documents are associated.
Document type as identified by metadata associated with the native
document indicating the application that created the native document
(e.g., Google Docs, Microsoft Word 6.0, Gmail, Outlook Email, etc.).
The title, subject, or filename, in order of preference, of the document.
The sender of the document as reflected in the metadata associated with
The recipient of the document as reflected in the metadata associated
with the document.
Names of copied recipients of the document as reflected in the metadata
associated with the document.
Names of recipients who received blind copies of the document as
reflected in the metadata associated with the document.
Name of the individual whose custodial file contained the document.
The Date Sent of the document (if applicable) formatted as follows:
MM/DD/YYYY with leading 2eros as appropriate (e.g., 06/07/2010).
The Date Received of the document (if applicable) formatted as
follows: MM/DD/YYYY with leading zeros as appropriate (e.g.,
The Date Modified of the document formatted as follows: MM/DD/
YYYY with leading zeros as appropriate (e.g., 06/07/2010).
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