Akamai Technologies, Inc. v. Limelight Networks, Inc.

Filing 65

Judge George A. O'Toole, Jr: ORDER entered. Agreed Protective Order.(Halley, Taylor)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

AKAMAI TECHNOLOGIES, INC.,
Case No. 1:16-cv-10253-GAO
Case No. 1:16-cv-12624-GAO

Plaintiff,
v.

JURY TRIAL DEMANDED
LIMELIGHT NETWORKS, INC.,
Defendant.

AGREED PROTECTIVE ORDER
1.

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. 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.
Nothing in this Order implies anything with respect to whether a given piece of
information should or should not be produced in discovery in this action. The Parties
reserve all rights with respect to the scope of discovery under the Federal Rules of Civil
Procedure, the Local Rules of this Court, and all applicable law.
2.

DEFINITIONS
2.1.

Challenging Party: a Party or Non-Party that challenges the

designation of information or items under this Order.
2.2.

“CONFIDENTIAL” Information or Items : information that

qualifies for protection under Federal 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.
2.3.

Counsel: Designated House Counsel and Outside Counsel of

Record (as well as the support staff of said Outside Counsel of Record).
2.4.

Designated House Counsel: two (2) House Counsel for each

Receiving Party with responsibility for managing this litigation, who may have access to
“CONFIDENTIAL” information.
2.5.

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 - OUTSIDE COUNSEL ONLY ,” or
“HIGHLY CONFIDENTIAL - SOURCE CODE.”
2.6.

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.
2.7.

Expert: a person with specialized knowledge or experience in a

matter pertinent to the litigation who has been retained by a Party or its Counsel to serve
as an expert witness or as a consultant in this action.
2.8.

“HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL 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.
OUTSIDE COUNSEL ONLY

means

HIGHLY CONFIDENTIAL -

CONFIDENTIAL INFORMATION
2

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 - OUTSIDE
COUNSEL ONLY, each Party agrees to use such designation in good faith.
2.9.

“HIGHLY CONFIDENTIAL - SOURCE CODE” Information or

Items: extremely sensitive “Confidential Information or Items” representing computer
code and associated comments and revision histories, formulas, metadata and
configuration files necessary to the function of the computer code base, 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 NonParty would create a substantial risk of serious harm that could not be avoided by less
restrictive means.
2.10.

House Counsel: attorneys who are employees of a Party to this

action. House Counsel does not include Outside Counsel of Record or any other outside
counsel.
2.11.

Non-Party:

any

natural

person,

partnership,

corporation,

association, or other legal entity not named as a Party to this action.
2.12.

Outside Counsel of Record: attorneys (including those admitted

pro hac vice) who are not employees, officers, or directors of a Party to this action but are
retained to represent or advise a Party with respect to this action and whose identities and
affiliations have been disclosed to all Parties.
2.13.

Party: any party to this action, including all of its officers,
3

directors, employees, consultants, retained experts, and Counsel.
2.14.

Producing Party: a Party or Non-Party that produces Disclosure or

Discovery Material in this action.
2.15.

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 subcontractors.
2.16.

Protected Material: any Disclosure or Discovery Material that is

designated as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL-OUTSIDE COUNSEL
ONLY,” or as “HIGHLY CONFIDENTIAL - SOURCE CODE.”
2.17.

Receiving Party: a Party that receives Disclosure or Discovery

Material from a Producing Party.
3.

SCOPE

The protections conferred by this Protective 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
Protective 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; and (b) any information known to the Receiving P arty 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. For the avoidance of doubt, nothing in this Order shall be construed to
prevent a Party from presenting evidence in Court including without limitation in

4

connection with a motion or at Trial.
4.

DURATION

Even after final disposition of this litigation, the confidentiality obligations
imposed by this Order shall remain in effect until a Designating Party agrees otherwise in
writing or a court order otherwise directs. Final disposition shall be deemed to be final
judgment herein after the completion and exhaustion of all appeals, rehearings, remands,
trials or reviews, including the time limits for filing any motions or applications for
extension of time pursuant to applicable law.
5.

DESIGNATING PROTECTED MATERIAL
5.1.

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 reasonably 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.
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.
5.2.

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.

5

Designation in conformity with this Order requires:
(a)

for information in documentary form (e.g., paper or electronic

documents, but excluding transcripts of depositions or other pretrial or trial proceedings),
that

the

Producing

Party

affix

the

legend

“CONFIDENTIAL,”

“HIGHLY

CONFIDENTIAL - OUTSIDE COUNSEL 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.
A Party or Non-Party that makes original documents or materials (such as
source code) 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 - OUTSIDE COUNSEL
ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” as appropriate. 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 - OUTSIDE COUNSEL 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.
(b)

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, trial 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
6

of the testimony may qualify for protection, the Designating Party may invoke on the
record (before the deposition, hearing, trial 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 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,”
“HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY,”

or

“HIGHLY

CONFIDENTIAL – SOURCE CODE.”
Parties shall give the other parties notice if they reasonably expect a
deposition, hearing, trial 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. Alternatively, the Protected Material may be identified prior to its use at a
deposition, when such prior notice is not reasonably possible and any unauthorized
individual may be asked to leave the deposition during discussions regarding the
Protected Material.

The use of a document as an exhibit at a deposition or other

proceeding shall not in any way affect its designation as “CONFIDENTIAL,” “HIGHLY
CONFIDENTIAL - OUTSIDE COUNSEL ONLY,” or “HIGHLY CONFIDENTIAL –
SOURCE CODE.”
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
7

designation shall be treated during that period as if it had been designated “HIGHLY
CONFIDENTIAL - OUTSIDE COUNSEL 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 Protective Order.
(c)

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 - OUTSIDE COUNSEL
ONLY,” or “HIGHLY CONFIDENTIAL - SOURCE CODE.”
(d)

for information not reduced to documentary, tangible or phys ical

form or which cannot be conveniently designated as set forth in paragraphs 5.2(a)-(c),
that the Producing Party inform the Receiving Party of the designation in writing.
5.3.

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.
6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1.

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.

8

6.2.

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 Protective Order. The parties shall attempt to resolve each
challenge in good faith and must begin the process by conferring directly within 7
business 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 business 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. If the volume of documents whose
designation is being challenged under this process is large, the timelines set forth above
may be reasonably adjusted by agreement of the parties.
6.3

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 the Court’s Local Rules, within 14 calendar days of the parties agreeing
that the meet and confer process will not resolve their dispute. 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.
The burden of persuasion in any such challenge proceeding shall be on the
Challenging Party. No party shall make such a challenge for any improper purpose (e.g.,
to harass, impose unnecessary expenses and burdens on other parties). Any challenge for
improper purpose may be taken into account in addressing a request for sanctions. All
9

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.
7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1.

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. 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
only the persons authorized under this Order, and in a manner that is no less secure than
the Receiving Party stores its own Protected Material.
For avoidance of any doubt, no person receiving Protected Materials may
use such Protected Materials for prosecuting or assisting in the prosecution of any patent
application on behalf of the Receiving Party or its successor-in-interest, or in any
continuation, divisional, substitute, or convention application, whether or not claiming
priority from the asserted patents in this litigation, or any foreign counterpart thereof,
whether or not such prosecution relates to the patents-in-suit in this case.
For avoidance of any doubt, no person receiving Protected Materials may
use such Protected Materials in connection with any post-grant proceedings before the
USPTO regardless of the proceedings’ relationship to the patents-in-suit in this case.
7.2.

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:

10

(a)

the Receiving Party’s Outside Counsel of Record in this action, as

well as employees of said Outside Counsel of Record to whom it is reasonably necessary
to disclose the information for this litigation;
(b)

two (2) Designated House Counsel, who are members of at least

one state bar in good standing, with responsibility for managing this litigation, who have
signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), as well as
support staff of said Designated House Counsel of Record to whom it is reasonably
necessary to disclose the information for this litigation;
(c)

two (2) Designated, non-lawyer, in-house employees of the

Receiving Party, who have signed the “Acknowledgment and Agreement to Be Bound”
(Exhibit A), but only insofar as it is necessary to the performance of their duties in
connection with this litigation;
(d)

the court and its personnel;

(e)

jurors selected for trial in this Action;

(f)

court reporters and their staff, professional jury or trial consultants,

and Professional Vendors to whom disclosure is reasonably necessary for this litigation;
(g)

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;
(h)

mock jurors who have signed the “Acknowledgment and

Agreement to Be Bound” (Exhibit A). In no event will mock jurors be shown such
material more than three months prior to the scheduled trial date in this Action; and
(i)

the author or recipient of a document containing the information, a

custodian or other person who otherwise possessed or knew the information , or any
person whom the Producing Party agrees in writing or on the record at a deposition may
be shown specific CONFIDENTIAL material. For the avoidance of doubt, such
11

agreement shall be presumed to relate only to specific CONFIDENTIAL material that is
the subject of such agreement, and such agreement shall be presumed not to authorize
continuing disclosure beyond the specific context of the agreement (such as during the
conduct of a deposition).
7.3.

Disclosure

of

“HIGHLY

CONFIDENTIAL

-

OUTSIDE

COUNSEL 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

-

OUTSIDE COUNSEL ONLY”

or

“HIGHLY

CONFIDENTIAL - SOURCE CODE” only to:
(a)

the Receiving Party’s Outside Counsel of Record in this action, as

well as employees of said Outside Counsel of Record to whom it is reasonably necessary
to disclose the information for this litigation;
(b)

the court and its personnel;

(c)

jurors selected for trial in this Action;

(d)

court reporters and deposition videographers and their staff,

professional jury or trial consultants who have signed the “Acknowledgment and
Agreement to Be Bound” (Exhibit A), and Professional Vendors (other than deposition
videographers) who have signed the “Acknowledgment and Agreement to Be Bound”
(Exhibit A), to whom disclosure is reasonably necessary for this litigation;
(e)

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;
(f)

mock jurors who have signed the “Acknowledgment and

Agreement to Be Bound” (Exhibit A). In no event will mock jurors be shown such
material more than three months prior to the scheduled trial date in this Action; and
12

(g)

the author or recipient of a document containing the information, a

custodian or other person who otherwise possessed or knew the information (or a
deponent or witness who, from the face of a document containing the information or from
other documents or testimony, appears to have authored, received, or otherwise possessed
or known the information), or any person whom the Producing Party agrees in writing or
on the record at a deposition may be shown specific CONFIDENTIAL material. For the
avoidance of doubt, such agreement shall be presumed to relate only to specific
CONFIDENTIAL material that is the subject of such agreement, and such agreement
shall be presumed not to authorize continuing disclosure beyond the specific context of
the agreement (such as during the conduct of a deposition).
7.3.1

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 Material
of which such person has prior knowledge.
7.4.

Procedures for Approving or Objecting to Disclosure of

“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY” or
“HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items to Experts.
(a)

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 may be furnished and disclosed to the
Receiving Party’s Experts (as defined in this Order) and their necessary support
personnel.
(b)

No disclosure of Protected Material to an Expert shall occur until

(i) that person has signed the form attached hereto as Exhibit A; (ii) a signed copy of such
executed Exhibit A has been provided to the Producing Party; and (iii) to the extent there
has been an objection under paragraph 7.4(c), that objection has been resolved as
provided for below.
(c)

A Receiving Party desiring to disclose Protected Material to an
13

Expert shall also give prior written notice by email to the Producing Party, who shall
have five (5) 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 , for each Expert to whom disclosure is sought, a curriculum vitae
including or accompanied by the following information: name, address,

education,

current employer, employment history for the past ten (10) years, a listing of cases in
which the witness has testified as an expert at trial or by deposition within the preceding
ten (10) years, a listing of all books, journal articles, theses, and other papers published
by the Expert within the preceding ten (10) 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) until after the expiration of the foregoing notice
period.
(d)

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 may result in specific business or economic harm to that Party.
(e)

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 Material to the Expert. The parties agree to
cooperate in good faith to shorten the time frames set forth in this paragraph if necessary
14

to abide by any discovery or briefing schedules.
The objecting Party sha ll 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, (2) disclosure of the Protected Material is likely to
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 there is a specific and substantiated reason to believe the
Expert will contravene this Order, or (4) that the Expert’s access to Protected Material
may create other confidentiality or business risks in connection with other interests tied to
the Expert.
8.

Disclosure of HIGHLY CONFIDENTIAL - SOURCE CODE
(a)

To the extent production of source code becomes necessary in this

case, subject to the provisions below, 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 reasonably 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.”
(1)

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 the offices of the
Producing Party’s Outside Counsel of Record in this action or at another location
mutually agreed between the parties. Any future inspections will take place at the same
site absent agreement of the parties. Source Code will be loaded or otherwise made
available for viewing on two non-networked computers (except such connection(s) as are
15

necessary for the Producing Party to make the source code available) that are 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, printer, portable hard
drive, etc.) is prohibited while accessing the computer containing the Source Code , with
the exception that a mouse and keyboard may be used as necessary to view (but not edit)
the source code. The computer containing 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.
(2)

With respect to Akamai’s source code, Akamai will make

its source code available for inspection in its Linux (not a Windows) environment.
Limelight’s Outside Counsel of Record and/or Experts may request that other
commercially available Linux software tools for viewing and searching (but not for
editing) source code be installed for use in the Linux environment , in which case
Limelight must provide Akamai with the CD or DVD containing such software tool(s) at
least five business days in advance of the inspection. With respect to Limelight’s source
code, Akamai’s Outside Counsel of Record and/or Experts may request that
commercially available licensed software tools for viewing and searching (but not for
editing) source code be installed for use on the secured computer, in which case Akamai
must provide Limelight with the CD or DVD containing such software tool(s) at least
five 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.
(3)

The Receiving Party’s Outside Counsel of Record and/or

Expert shall be entitled to take notes relating to the source code but may not copy the
source code into the notes. Such notes will at all times be treated by the Receiving Party
as HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL ONLY materials accessible only
to those individuals specifically identified below. The Receiving Party’s Outside Counsel
16

of Record and/or Expert may bring into the inspection room and use electronic
equipment, including laptops that are reasonably necessary for taking such notes. In no
event however shall any such equipment be connected to any network while in the
inspection room. The Producing Party agrees to provide wired or wireless Internet access
and a telephone land-line near the inspection room. Under no circumstances are Internet
connected devices, cell phones, or cameras to be used in the inspection room. To the
extent that the Receiving Party and/or its Experts bring such devices with them, Internet
and wireless connectivity will be disabled on such devices while in 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. The
Producing Party shall have no right to monitor the activities, writings, or discussions, of
the Receiving Party within the Source Code review room, although the Producing Party
shall have the right to monitor and log entrances and exits of reviewers to and from such
room.
(4)

The Receiving Party may request pages of Source Code to

be provided by the Producing Party, but only if and to the extent necessary. There shall
be no presumed limit on the total number of requested pages. However, absent agreement
or a showing of good cause, any given selection of source code to be provided under this
provision shall not exceed fifty (50) contiguous pages. Further, the parties are not to use
this request procedure for the convenience of their experts or outside counsel, i.e. to
avoid the burden of conducting the primary source code review in the offices of opposing
outside counsel. Within 3 business days or such additional time as necessary due to
volume requested, the Producing Party will provide the requested mater ial on an
encrypted disk in a password-protected PDF bearing Bates numbers and the legend
“HIGHLY CONFIDENTIAL - SOURCE CODE” unless objected to as discussed below.
The passwords to the disk and PDF should only be shared with Outside Counsel of record
17

and testifying Experts. The encrypted PDFs shall constitute part of the source code
produced by the Producing Party in this action.
(5)

If the Producing Party objects that the requested portions

are not reasonably necessary to any case preparation activity, the Producing Party shall
make such objection known to the Receiving Party within 3 business days. If after
meeting and conferring the Producing Party and the Receiving Party cannot resolve the
objection (where such meet and confer need not take place in person), the Receiving
Party shall be entitled to seek a Court resolution of whether the requested source code in
question is not reasonably necessary to any case preparation activity. Contested source
code in PDF format need not be produced to the requesting Party until that matter is
resolved by the Court.
(6)

Designated Outside Counsel of Record may maintain three

(3) encrypted electronic copies of the produced PDF of Source Code on three (3) separate
non-networked computers that are password protected with encrypted hard drives and
maintained in a secure, locked area. The password to access these computers and PDF
copies will be treated HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY
information, shared only with Outside Counsel and testifying Experts for the Receiving
Party.
(7)

Designated Outside Counsel of Record’s password-

protected non-networked computers containing the three (3) electronic copies of
produced PDFs of Source Code shall at all times be stored at the offices of Outside
Counsel of Record for the Receiving Party, except that it may be transported to and
viewed at (i) the site where any deposition is taken, for the purpose of questioning a
deponent specified below as having access to Source Code about the source code
contained therein; (ii) the office(s) of the Receiving Party’s designated Expert(s); (iii) the
Court for the purposes of a hearing or trial in which it is necessary to show the Court the
source code contained therein; or (iv) any intermediate location necessary to transport the
18

information to a hearing, trial or deposition. To the extent that such password-protected
non-networked computer must be transported it must be turned off for the duration of
such transport.
(8)

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 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 referenced in section (c) below.
(9)

Unless otherwise agreed in advance by the parties in

writing, following each inspection, the Receiving Party’s Outside Counsel of Record
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. Notwithstanding the foregoing, if it comes to the Producing
Party’s attention that any items are left in the room that the Producing Party reasonably
believes may be or may contain work product and/or attorney-client privileged
information, the Producing Party shall treat such items as work product and/or attorneyclient privileged information and shall immediately notify the Receiving Party.
(10)

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 code inspection.
(11)

The Receiving Party may request, with reasonable prior

notice, that a secured machine with Source Code and customary review tools be made
available at depositions of individuals specified below as having access to Source Code.
(b)

Only the following individuals shall have access to “HIGHLY
19

CONFIDENTIAL - SOURCE CODE” materials, absent the express written consent of
the Producing Party or further court order:
(1)

Outside Counsel of Record for the parties to this action,

including any attorneys, paralegals, technology specialists and clerical employees of their
respective law firms;
(2)

Up to three (3) outside Experts per Party, pre-approved in

accordance with Paragraphs 7.4(a)-(f) and specifically identified as eligible to access
Source Code in addition to up to five (5) necessary support personnel such as code
reviewers who will be subject to the same disclosure and objection process as the
Experts. The parties may mutually agree to expand the number of support personnel;
(3)

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;
(4)

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 who has previously had direct access to the Source Code (in the
case of a former officer, director, or employee, such access shall be limited to code that
such former officer, director, or employee had the ability to access while still an officer,
director, or employee of the Producing Party); (ii) any person designated by the
Producing Party to provide testimony regarding the Source Code pursuant to Rule
30(b)(6) of the Federal Rules of Civil Procedure; and/or (iii) any other 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 so testifying.
(c)

The Receiving Party’s Outside Counsel of Record shall maintain a

daily log of all persons who have viewed the Source Code on the password protected,
20

standalone computers containing the produced PDF of Source Code;
(d)

The Receiving Party may create an electronic or paper copy or

image of excerpts of source code previously provided under Section 8(a)(4) 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 is used. For instance, pleadings, expert reports,
discovery, or other such documents may contain reasonable quotations of source code,
identifying and briefly quoting named methods, functions, variables, and ke y operations
thereof.

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. Electronic
documents containing such images or quotations must be stored on password-protected
computers of Outside Counsel of Record or designated Experts. The communication
and/or disclosure of electronic files or printed documents 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. Additionally, all copies of documents
containing such authorized quotations or excerpts of Source Code must be labeled
“HIGHLY CONFIDENTIAL - SOURCE CODE.” Such documents may be transmitted
electronically but only in secure form and only between individuals authorized under this
Protective Order to access Source Code. Any printed copies of such documents shall be
stored in a locked location at offices of Outside Counsel of Record or a designated
Expert, except to the extent necessary for Court filings, depositions, hearings, trial, or the
like. Additionally, there shall be a presumption that any Court filing containing Source
Code shall be filed by the parties and maintained by the Court under seal.
(e)

All copies of Source Code (including all files on the non-

networked computers referenced in Paragraph 8(a)(6) above) shall be securely destroyed
21

if they are no longer in use. Source Code files that are designated 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. For the
avoidance of doubt, this provision does not alter the parties’ rights under the provisions
below for Final Disposition with respect to the maintenance of copies of pleadings and
other such documents containing Protected Material.
9.

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 that compels disclosure of any information or items designated in this action as
“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY” or
“HIGHLY CONFIDENTIAL - SOURCE CODE” that Party must:
(a)

promptly notify in writing the Designating Party. Such notification

shall include a copy of the subpoena or court order;
(b)

promptly notify in writing the party who caused the subpoena or

order to issue in 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 Protective Order; and
(c)

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 - OUTSIDE COUNSEL
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
22

these provisions should be construed as authorizing or encouraging a Receiving Party in
this action to disobey a lawful directive from another court. If the Designating Party does
not take steps to prevent disclosure of such documents within ten (10) business days of
the date written notice is received, such notice to be provided by overnight courier with
delivery signature required, the Party to whom the referenced subpoena is directed may
produce such documents in response thereto, provided that the Party produce such
documents subject to a protective order providing forms of protection similar to those
provided under this Protective Order.
10.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
PRODUCED IN THIS LITIGATION
(a)

The terms of this Order are applicable to information produced by

a Non-Party in this action and designated as “CONFIDENTIAL,” “HIGHLY
CONFIDENTIAL OUTSIDE COUNSEL 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.
(b)

A Non-Party’s use of this Order to protect its Protected Material

does not entitle that Non-Party access to the Protected Material produced by any Party in
this case.
(c)

In the event that a Party is required, by a valid discovery request,

to produce a Non-Party’s confidential information in its possession, and the Party is
subject to an agreement with the Non-Party not to produce the Non-Party’s confidential
information, then the Party shall:
(1)

promptly notify in writing the Requesting Party and the

Non-Party that some or all of the information requested is subject to a confidentiality
agreement with a Non-Party;
23

(2)

promptly provide the Non-Party with a copy of the

Protective Order in this litigation, the relevant discovery request(s), and a reasonably
specific description of the information requested; and
(3) make the information requested available for inspection by the
Non-Party.
(d)

If the Non-Party fails to both object and seek a protective order

from this court within 10 business days of receiving the notice and accompanying
information, the Receiving Party shall 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 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.
11.

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 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.
12.

PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
MATERIAL
Production of documents or things containing Protected Material which

are not designated as one or more of the three categories of Protected Material at the time
of production shall not be deemed a waiver in whole or in part of a claim for confidential
24

treatment. 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 and, in no event later than one week after such notice,
return or destroy the specified information and any copies it has and not use or disclose
the information. In addition, the Receiving Party must take reasonable steps to retrieve
the information if it disclosed it before being notified. In the event that the Receiving
Party does not return or destroy the information within the one-week period identified
above, the Producing Party may promptly present the information to the court under seal
for a determination of the claim. Likewise, the Receiving Party may within the one-week
period, 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 ediscovery 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 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 court
order. Nothing in this section shall be used by the Producing Party to unduly or in bad
faith delay the litigation.
13.

MISCELLANEOUS
13.1.

Right to Further Relief. Nothing in this Order abridges the right

of any Party or person to seek its modification by wr itten agreement of the parties or by
the court.
13.2.

Right to Assert Other Objections. No Party waives any right it

otherwise would have to object to disclosing or producing any information or item on any
25

ground not addressed in this Protective Order. Similarly, no Party waives any right to
object on any ground to the use at trial of any of the material covered by this Protective
Order.
13.3.

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 compliance.
13.4.

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.
13.5.

Filing Protected Material. All transcripts of depositions, exhibits,

answers to interrogatories, pleadings, briefs, and other documents submitted to the Court
which have been designated as Protected Material, or which contain information so
designated, shall be filed under seal in a manner prescribed by the Court for such filings.
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 (i.e., in any filing that is not sealed) in this action.
26

13.6.

Examination of Non-Party. If a Non-Party is deposed pursuant to

this Agreement concerning Protected Material, any person other than the witness, his or
her attorney(s), or any person otherwise qualified to receive Protected Material under this
Order shall be excluded from the portion of the examination concerning such
information, unless the Producing Party consents to persons other than qualified
recipients being present at the examination. If the witness is represented by an attorney
who is not qualified under this Order to receive such information, then prior to the
examination, the Producing Party shall request that the attorney provide a signed
statement, in the form of Exhibit A hereto, that he or she will comply with the terms of
this Order and maintain the confidentiality of Protected Material disclosed during the
course of the examination.

In the event that such attorney declines to sign such a

statement prior to the examination, the parties, by their attorneys, shall jointly seek a
protective order from the Court prohibiting the attorney from disclosing Protected
Material.
13.7.

Right To Advise. Nothing herein shall preclude Outside Counsel

of Record 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 - OUTSIDE COUNSEL ONLY, or HIGHLY CONFIDENTIAL SOURCE CODE otherwise prohibited by this Order.
13.8.

This Order is entered without prejudice to the right of any Party to

apply to the Court at any time for additional protection, or to relax or rescind the
restrictions of this Order, when convenience or necessity requires. Furthermore, without
application to this Court, any Party that is a beneficiary of the protections of this Order
may enter a written agreement releasing any other Party hereto from one or more
requirements of this Order even if the conduct subject to the release would otherwise
violate the terms herein.
27

13.9.

The court in this action is responsible for the interpretation and

enforcement of this Order. After termination of this litigation, the provisions of this Order
shall continue to be binding except with respect to those documents and information that
become a matter of public record.

The court in this action retains and shall have

continuing jurisdiction over the parties and recipients of the Protected Material for
enforcement of the provision of this Order following termination of this litigation. All
disputes concerning Protected Material produced under the protection of this Order shall
be resolved by the court that presides over this action.
14.

FINAL DISPOSITION
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 certify in writing that it has destroyed such material. Destruction shall include
destroying all electronic files, email, attachments, and messages including any Protected
Material (including Source Code) as part of the purge of such Protected Material from
electronic storage media. 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 pr oduct, even if
such materials contain Protected Material. Notwithstanding this provision, no party shall
be required to return or destroy any Protected Material that may exist on any disaster
recovery backup system. Any such archival and/or backup copies that contain or
constitute Protected Material remain subject to this Protective Order as set forth in
Section 4.
Outside Counsel of Record for the parties are hereby authorized to be the
persons who may retrieve confidential exhibits and/or other confident ial matters filed
28

with the Court upon termination of this litigation without further order of this Court, and
are the persons to whom such confidential exhibits or other confidential matters may be
returned by the Clerk of the Court, if they are not so retrieved. No material or copies
thereof so filed shall be released except by order of the Court, or to Outside Counsel of
Record except as otherwise provided for hereunder. Notwithstanding the foregoing and
with regard to material designated as HIGHLY CONFIDENTIAL - SOURCE CODE, the
provisions of Paragraph 8 are controlling to the extent those provisions differ from this
paragraph.
15.

CROSS-USE PROVISION
The Parties agree that all documents produced by either Party in Limelight

Networks, Inc. v. XO Commc’ns, LLC, Case No 3:15-cv-720-JAG, in the United States
District Court for the Eastern District of Virginia (the “Virginia Case”) under the
Protective Order entered in that case, shall be deemed produced in this litigation under
the same confidentiality designations and protections that applied when the documents
were produced in the Virginia Case. The Parties also agree that outside counsel may
have access to and use in this litigation the following categories of Protected Materials
from the Virginia Case: (a) all court filings and attachments, including those filed under
seal; (b) all deposition and hearing transcripts and exhibits; (c) all expert reports; and (d)
all discovery responses. Nothing in this paragraph shall be deemed as an admission by
either Party that any document produced pursuant to this paragraph is admissible as
evidence at trial or in any other proceeding.

29

EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I, __________________ [print or type full name], of _______________ ________
________________________ [print or type full address, including company name if
applicable], declare under penalty of perjury that I have read in its entirety and
understand the Protective Order that was issued by the United States District Court for
the District of Massachusetts on ______________ [date] in the case of Akamai
Technologies, Inc. v. Limelight Networks, Inc., 16-cv-10253-GAO and 16-cv-12624GAO. I agree to comply with and to be bound by all the terms of this 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 Protective Order to any person
or entity except in strict compliance with the provisions of this Order.
I further agree to submit to the jurisdiction of the United States District Court for
the Massachusetts for the purpose of enforcing the terms of this 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 agent for service of process in connection with this action or any
proceedings related to enforcement of this Protective Order.

Date:
City and State where sworn and signed:
Printed name:
[printed name]
Signature:
[signature]

30

IT IS SO ORDERED
/s/ George A. O'Toole, Jr.
United States District Judge

April 26, 2017
DATED: _________________________

31

Akamai Technologies, Inc. v. Limelight Networks, Inc., 16-cv-10253