Semafone Limited, et al v. PCI Pal (U.S.) Inc.

Filing 44

STIPULATED PROTECTIVE ORDER. Signed by Magistrate Judge David S. Cayer on 11/17/2022. (brl)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
SYCURIO LIMITED and SYCURIO INC.
Plaintiffs,
DOCKET NO. 3:21-cv-00486-MOC-DSC

v.
PCI PAL (U.S.) INC.,

STIPULATED PROTECTIVE ORDER

Defendant.

The Court recognizes that disclosure and discovery activity are likely to arise that will
require the disclosure of trade secrets, confidential research, development, manufacturing,
financial, process, marketing, and business information, or other commercial information within
the meaning of Federal Rule of Civil Procedure 26(c). Good cause exists to protect this information
from public disclosure. In the absence of a suitable protective order safeguarding the
confidentiality of such information, the parties would be hampered in their ability to produce such
information.
Accordingly, the Court ORDERS that the parties shall adhere to the following:
1.

DESIGNATION OF PROTECTED MATERIAL

1.1

This Order shall govern all documents and other products of discovery obtained by

the parties from one another, and from third parties, all information copied or derived therefrom,
as well as all copies, excerpts, summaries or compilations thereof, including documents produced
pursuant to requests authorized by the Federal Rules of Civil Procedure, answers to interrogatories,
deposition transcripts, responses to requests for admission, affidavits, declarations, expert reports,
and other such material and information as may be produced during the course of this litigation or

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the litigation captioned Sycurio Limited v. PCI-PAL PLC, et al., Claim No. HP-2021-000030
(High Court of Justice, Business and Property Courts of England & Wales, Intellectual Property
List (ChD), Patents Court) (hereinafter, the “UK Litigation”).
1.2

In connection with discovery proceedings, in this action, any party or third party

may designate any non-public document, material or information as “CONFIDENTIAL”,
“HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY” or “HIGHLY CONFIDENTIAL –
SOURCE CODE” (collectively referred to as “Protected Material”).
(a)

A party may designate as “CONFIDENTIAL” any information, document,

or thing that the party reasonably and in good faith believes to contain confidential
information within the meaning of Fed. R. Civ. P. 26(c)(1)(G) used by it in, or pertaining
to, its business and that is not generally known, and which that party would not normally
reveal to third parties or, if disclosed, would require such third parties to maintain in
confidence.

(b)

A party may designate as “HIGHLY CONFIDENTIAL – ATTORNEY

EYES ONLY” such materials as the party reasonably and in good faith believes to contain
particularly sensitive technical information relating to research for and production of current
products; technical, business, and research information regarding future products; nonpublic and highly sensitive financial information; marketing and sales information, such as
marketing plans and forecasts, customer lists, pricing data, cost data, customer orders, and
customer quotations; any pending or abandoned patent applications, foreign or domestic;
and such other documents, information, or materials that relate to other proprietary
information that the designating party reasonably believes is of such nature and character
that disclosure of such information would be harmful to the designating party.

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(c)

A party may designate as “HIGHLY CONFIDENTIAL – SOURCE

CODE” information 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. Source Code includes human-readable
programming language text that defines software, firmware, or electronic hardware
descriptions. Source Code includes source-code files, which are text files containing source
code. These include, but are not limited to, files containing source code written in “C,”
“C++,” Java, JavaScript, PHP, Ruby, C# (C Sharp) assembler, VHDL, Verilog, Python,
and digital signal processor programming languages, as well as “include files,” “make”
files, link files, and other human-readable text files used in the generation and/or building
of software directly executed on a microprocessor, micro-controller, or digital signal
processor. Source Code does not include publicly available source code.

1.3

The following information shall not be designated or protected under this Protective

Order:
(a)

Information that is in the public domain at the time of disclosure, including

patent file histories, publicly available prior art publications, catalogs and other advertising
materials, press releases, and publicly-filed financial statements;
(b)

Information that at any time is made public through no act of a non-

designating party;
(c)

Information that the designating party has not undertaken with others to

maintain in confidence and that is in the possession of or becomes available to the receiving

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party other than through discovery in this action, but only if the receiving party can show
by written documentation that the information independently came into its rightful
possession; or
(d)

Information that is independently developed by the receiving party, as

reflected by written documentation demonstrated to be in existence prior to production by
the party claiming confidentiality.
1.4

Any documents or things produced pursuant to a discovery request or other written

materials exchanged by the parties (including discovery responses, letters, and briefs) that a party
desires to designate as Protected Material shall be so designated by marking each page of the
document, paper or thing CONFIDENTIAL, HIGHLY CONFIDENTIAL – ATTORNEY EYES
ONLY or HIGHLY CONFIDENTIAL – SOURCE CODE, as appropriate, and indicating the
identity of the producing party (e.g., through the use of an identifying prefix to the document
identification (Bates) number).
1.5

In the event a party may make available certain of its non-Source Code files for

inspection by another party, which files may contain non-confidential material as well as material
that may be subject to protection under this Protective Order, with the intent that following such
inspection the inspecting party will designate certain of the inspected documents to be copied and
furnished to it, such files need not be marked with either confidentiality designation in advance,
but shall all be treated as HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY materials.
Only those persons identified in paragraph 2.2 below as permitted to view HIGHLY
CONFIDENTIAL – ATTORNEY EYES ONLY materials may be present at any such inspection.
When the producing party copies the documents to furnish to the inspecting party, the producing

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party shall mark Protected Material with the appropriate confidentiality designation to the extent
warranted under paragraph 1.2.
1.6

Whenever a deposition involves a disclosure of Protected Material, the following

procedures shall apply:
(a)

Any party may designate any portion or all of a deposition as

CONFIDENTIAL, HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY or
HIGHLY CONFIDENTIAL – SOURCE CODE by notifying the other parties on the record
during the deposition. The Court Reporter shall be asked to make the appropriate
confidentiality designation on each page of the transcript that contains CONFIDENTIAL,
HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY CONFIDENTIAL
– SOURCE CODE information. At that time, all persons not qualified to receive that
category of information shall leave the room prior to continuation of the deposition and
until the conclusion of such designated testimony; and
(b)

Any party may also designate any portion or all of a deposition as

CONFIDENTIAL, HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY or
HIGHLY CONFIDENTIAL – SOURCE CODE by notifying the other parties separately
in writing within ten days of receipt of the transcript. In such event, the parties shall confer
as to the most convenient way to segregate the designated portions of the transcript. All
information disclosed at a deposition and all information contained in deposition transcripts
shall be treated as CONFIDENTIAL, HIGHLY CONFIDENTIAL – ATTORNEY EYES
ONLY or HIGHLY CONFIDENTIAL – SOURCE CODE for a period of ten days after
the receipt of the transcript to permit adequate time for review of the transcript and notice
to other counsel regarding any designation as Protected Material by a designating party.

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Provided, however, that if a person is allowed to attend all or a portion of a deposition
pursuant to Section 1.6.a. above, that person shall be allowed to review the portion of the
transcript for which she or he attended notwithstanding any confidentiality designation that
may be made after the deposition.
(c)

Any portion of the transcript reflecting material designated “HIGHLY

CONFIDENTIAL SOURCE CODE” shall be presumptively treated in accordance with the
procedures pertaining to Source Code.
2.
2.1

ACCESS TO AND USE OF PROTECTED MATERIAL
Protected Material, and all summaries, compilations, and derivations thereof,

whether oral or written, shall be maintained in confidence, shall be used solely in the preparation,
prosecution, or trial of this action and not for any other purpose, and shall be disclosed only as
provided in the following paragraphs. Notwithstanding the preceding sentence, and subject to
paragraph 2.2(a), Protected Material may be shared by outside counsel of a Party with outside
counsel of the same party representing it in the UK Litigation, for use in that proceeding as
appropriate, provided that such counsel agrees in advance to the terms of this Protective Order.
2.2

Information which has been designated as HIGHLY CONFIDENTIAL -

ATTORNEY EYES ONLY may be disclosed only to:
(a)

The outside attorneys of record and their employees who are engaged in

assisting in this action or the UK Litigation; provided that such outside attorneys do not
include any persons participating in the prosecution of any present or future U.S. patent
application (including the reexamination or reissue of any present or future patent) that is
a counterpart to or related to the patents-in-suit (“participating” in such prosecution
includes preparing or reviewing patent applications, reviewing office actions, preparing or

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reviewing responses to office actions, and engaging in any discussion or other
communication regarding the scope or validity of any claims in such patent applications or
in the patents that are the subject of such reexamination or reissue); provided that this
exclusion does not apply to persons whose involvement with the prosecution of such
patents or patent applications is limited to administrative oversight for billing or project
assignment purposes, and further provided that such exclusion shall not prevent litigation
counsel from participating in any proceedings attacking the validity of the patents in suit,
including any inter partes review or other Patent Trial & Appeal Board proceedings;
(b)

Independent consultants or experts retained by the party or its attorneys in

connection with this action or the UK Litigation, including technical experts, damage and
industry experts, patent experts, and jury or trial consultants, together with their employees
engaged in assisting in this action (including mock jurors), but only subject to the
provisions of paragraph 2.4 below; provided that such independent consultants or experts
do not include any persons participating in the prosecution of any present or future patent
application (including the reexamination or reissue of any present or future patent) that is
a counterpart to or related to the patents-in-suit (“participating“ in such prosecution
includes preparing or reviewing patent applications, reviewing office actions, preparing or
reviewing responses to office actions, and engaging in any discussion or other
communication regarding the scope or validity of any claims in such patent applications or
in the patents that are the subject of such reexamination or reissue); provided that this
exclusion does not apply to persons whose involvement with the prosecution of such
patents or patent applications is limited to administrative oversight for billing or project
assignment purposes;

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(c)

The Court and its personnel;

(d)

Court reporters and their personnel engaged in proceedings incident to

preparation for trial or engaged in trial;
(e)

Professional vendors and their employees, including copy services, trial

graphics services, and translation services, engaged by counsel; and
(f)

Any person who is indicated on the face of a document to have been an

author, addressee, or copy recipient of the document, or the original source of the
information.
2.3

Information that has been designated as CONFIDENTIAL may be disclosed only

to:
(a)

The persons identified in paragraph 2.2 above; and

(b)

Any party or employee of a party to whom disclosure is reasonably

necessary for this litigant and litigation who has signed the “Agreement to Be Bound by
Protective Order” in Exhibit A.
2.4

Protected Material shall be disclosed to consultants and experts only upon

the following terms:
(a)

Prior to any disclosure, the consultant or expert shall be identified in writing

to the other parties’ counsel by name, address, and corporate, business or other professional
affiliation or employment, together with a copy of the expert’s curriculum vitae and a list
of the expert’s litigation or consulting engagements for the past three years;
(b)

Unless another party notifies the proposing party of any objection and that

objection is received within five business days after notification (by fax, by email, or by

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overnight mail), the consultant or expert shall thereafter be allowed to have access to
Protected Material pursuant to the terms and conditions of this Protective Order;
(c)

In the event of a timely objection, which shall be made in good faith and on

reasonable grounds, the proposing party shall refrain from disclosure of Protected Material
to the consultant or expert until the objection has been resolved between the parties or ruled
upon by the Court;
(d)

The parties shall endeavor in good faith to resolve the dispute without

calling upon the intervention of the Court. The burden is on the objecting party to seek the
intervention of the Court by appropriate motion to preclude the proposing party from
disclosing Protected Material to the consultant or expert. If no such motion is filed within
ten business days of receipt of the objection, the proposing party may disclose Protected
Material to the consultant or expert as if no objection had been raised; and
(e)

No party shall use its right to object to a proposed consultant or expert to

interfere with the ability of another party to prepare for any hearing or trial through the use
of consultants and experts.
2.5

Prior to receiving any Protected Material, any persons described in sections (b), (d)

or (e) of paragraph 2.2 shall be furnished with a copy of this Protective Order and shall execute a
copy of the “Agreement to be Bound by Protective Order” attached as Exhibit A. A copy of the
signed Agreement shall be maintained by counsel for the party providing such access.
2.6

Nothing in this Protective Order shall prevent any counsel of record from

utilizing Protected Material in the examination of any person who is reasonably alleged to be the
author or source of the Protected Material or who is reasonably believed to have knowledge
relating thereto. In addition,

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(a)

Parties and present employees of the parties, or employees of third parties,

may be examined as a witness at depositions and trial and may testify concerning all
Protected Material produced or designated by that party, or by the employee's employer if
a third party;
(b)

Former employees of the parties, or former employees of third parties, may

be examined and may testify concerning all Protected Material produced or designated by
the party or third party that formerly employed such person and which pertains to the period
or periods of his/her employment and prior thereto; and
(c)

Former experts of the parties may be examined and may testify concerning

all Protected Material produced or designated by the respective party that pertains to the
subject matter of his/her consultation.
2.7

Nothing in this Protective Order shall preclude any party from introducing

Protected Material into evidence at any evidentiary hearing or at trial. However, if anyone intends
to introduce or refer to Protected Material at any hearing or trial, the party wishing to make the
disclosure shall first notify the producing party and provide that party with an opportunity to object
and/or to ask the Court to take appropriate precautionary procedures (e.g., clearing the Courtroom,
sealing the record, etc.).
2.8

Nothing in this Protective Order shall bar or otherwise restrict any attorney from

rendering advice to his/her clients with respect to this litigation and referring to or relying generally
upon his/her examination of Protected Material, provided that in rendering such advice and in
otherwise communicating with his/her clients, the attorney shall not disclose the content of such
information.

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2.9

All persons in possession of Protected Material shall exercise reasonable

and appropriate care with regard to the storage, custody, and use of such information in order to
ensure that the provisions of this Protective Order are observed and the confidential nature of the
information is maintained.
3.

CHALLENGES TO CONFIDENTIALITY DESIGNATIONS

3.1

Any party believing that particular information has been improperly marked, i.e.,

that it is not in fact CONFIDENTIAL, HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY,
or HIGHLY CONFIDENTIAL – SOURCE CODE, may challenge such designation at any time
by raising the issue, in writing to the designating party, and specifically identifying, by document
identification (Bates) number, by deposition page and line, or by other appropriate specific
identifier, the information whose confidentiality status is challenged. Within five business days of
receipt of such writing, the designating party shall either remove or reduce the designation, or
respond that it has reviewed the matter and continues to maintain the designation in good faith.
3.2

The parties shall endeavor in good faith to resolve any such dispute without calling

upon the intervention of the Court. If the designating party maintains its designation and the parties
are unable to reach agreement, the challenging party may bring the issue to the Court, and the
parties agree to use any available expedited procedures for doing so. The party asserting
confidentiality shall have the burden of establishing the appropriateness of the designation, except
that a party claiming that information designated by the other as confidential is in the public
domain shall have the burden of proving such public knowledge.
3.3

Challenged information shall be treated as designated until the resolution of the

dispute by the parties or ruling by the Court.
4.

FILING OF PROTECTED MATERIAL

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4.1

The parties may not file documents containing Protected Material disclosed by

another party unless agreed to in writing by the party that initially disclosed the Protected Material,
or unless filed under seal. Given the nature of this case, however, the parties and the Court
anticipate a need for the filing of at least some Protected Material under seal. The parties are hereby
authorized to file Protected Material under seal provided that each such filing shall be subject to
review by the Court. If the Court deems that any filing, or any portion thereof, was not properly
filed under seal, the Court may require the filing party to show good cause and the legal basis for
why the filing, or portion thereof, should not be unsealed. Unless the Court orders otherwise, all
sealed motions and documents shall be filed according to W.D. North Carolina CM/ECF
guidelines so they are available electronically to all counsel of record. If sealed filings are not
accessible through the Court’s Case Management/Electronic Case Filing System, the parties shall
serve opposing counsel by email with a copy of any motion or documents filed under seal.
5.

TERMINATION OF LITIGATION

5.1

The obligations of this Protective Order shall survive the termination of the action

and continue to bind the parties. Within sixty days after termination of this action by judgment,
settlement, or otherwise from which no appeal can be brought, each party shall destroy all
documents containing or disclosing Protected Material of any other party. Each party’s outside
litigation counsel shall have the right to retain one copy of the pleadings; of motions, memoranda,
documents, and papers filed with the Court; of deposition transcripts and exhibits; and of any
documents constituting work product.
6.

THIRD PARTY DISCOVERY

6.1

In the event that any third party shall be called upon, by subpoena or otherwise, to

provide or produce documents or information considered CONFIDENTIAL, HIGHLY

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CONFIDENTIAL – ATTORNEY EYES ONLY, or HIGHLY CONFIDENTIAL – SOURCE
CODE by such third party, such third party may elect to have its information treated in accordance
with the terms of this Protective Order by so notifying counsel for all parties in writing. Such third
party may also elect to restrict access under paragraph 2.2(a) to the receiving party’s US-based
outside attorneys of record and their employees who are engaged in assisting in this action only.
Upon service of such notice, such third party may designate documents and information in the
manner set forth in this Protective Order, and such third party’s designated information shall be
protected in the same manner as that of the parties to this action, subject to any further election
made pursuant to this paragraph.
7.

INADVERTENT DISCLOSURE

7.1

If a party inadvertently discloses any document or thing containing information that

it deems CONFIDENTIAL, HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY, or
HIGHLY CONFIDENTIAL – SOURCE CODE without designating it pursuant to this Protective
Order, the disclosing party shall promptly upon discovery of such inadvertent disclosure inform
the receiving party in writing, forwarding a replacement copy of the inadvertently disclosed
material properly marked with the appropriate confidentiality designation. The receiving party
shall thereafter treat the information as if it had been properly marked from the outset and shall
make a reasonable effort to retrieve and destroy the unmarked version of the inadvertently
disclosed material. Disclosure by the receiving party to unauthorized persons before being notified
of the inadvertent disclosure shall not constitute a violation of this Protective Order. Nothing in
this Protective Order shall preclude the receiving party from challenging the confidentiality
designation of the late-marked material pursuant to the provisions of paragraph 3.

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7.2

Pursuant to Federal Rule of Evidence 502, the inadvertent or mistaken production

or disclosure of documents or other information subject to the attorney-client privilege, the work
product doctrine, or other privilege shall not be deemed a waiver of a claim of privilege, either as
to the specific information disclosed or as to any other related information. If a producing party
inadvertently produces or otherwise discloses to a receiving party information that is subject to
such privilege or immunity, the producing party shall promptly upon discovery of such disclosure
so advise the receiving party in writing and request that the inadvertently disclosed information be
returned or destroyed. The receiving party shall return or destroy all copies of the inadvertently
produced material within five business days of receipt of the request. Any notes or summaries
referring or relating to any inadvertently produced privileged material shall be destroyed. Nothing
in this Protective Order shall preclude the receiving party returning the inadvertently produced
material from seeking an order compelling the production of information previously produced
inadvertently.
8.

MISCELLANEOUS PROVISIONS

8.1

If Protected Material in the possession of any receiving party is subpoenaed by any

court, by any administrative or legislative body, or by any other person purporting to have authority
to subpoena such information, or is the subject of any discovery request under Rules 30-36 of the
Federal Rules of Civil Procedure or any comparable rule of court or of any adjudicative body (such
subpoena or discovery request collectively referred to as a ”Third Party Request“), the party to
whom the Third Party Request is directed will not produce such information without first giving
prompt written notice (including a copy of the Third Party Request) to the attorneys of record for
the producing party, no more than three business days after receiving the Third Party Request. The
party receiving the Third Party Request must also promptly inform in writing the party who caused

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the Third Party Request to issue in the other litigation that some or all the material covered by the
Third Party Request is subject to this Protective Order. The party receiving the Third Party Request
must deliver a copy of this Protective Order promptly to the party in the other action that caused
the Third Party Request to issue.
8.2

The producing party shall bear the burden and expense of seeking

protection in court of its own Protected Material, and nothing in this Protective Order should be
construed as authorizing or encouraging a party receiving a Third Party Request in this action to
disobey a lawful directive from another court. Disclosure of information in response to a properly
issued Third Party Request shall not constitute a violation of this Protective Order.
8.3

This Protective Order may be modified only by further Order of the Court,

whether sua sponte or by agreement of the parties or their counsel and approval by the Court, and
is without prejudice to the rights of any party to move for relief from any of its provisions, or to
seek or agree to different or additional protection for any particular material or information.
8.4

Treatment by counsel or the parties of information designated CONFIDENTIAL,

HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY, or HIGHLY CONFIDENTIAL –
SOURCE CODE as designated shall not be construed as an admission by any party that the
designated information contains trade secrets or other proprietary or confidential information.
Conversely, failure to so designate shall not constitute a waiver of any party’s claims, either within
or outside this action, that any such documents or information do contain trade secrets or other
proprietary or confidential information.
8.5

No party shall be obligated to challenge the propriety of any designation, and failure

to challenge a claim of confidentiality at the time of receipt shall not constitute a waiver of the
right to challenge a confidentiality designation at any later time.

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8.6

By proposing this protective order, neither party shall be deemed to have agreed to

the discoverability of information that is covered by this protective order, and entry of this
protective order does not mean the Court has determined that information potentially covered by
this protective order is discoverable.
9.

SOURCE CODE

9.1

Any review and production of Source Code that is determined to be relevant and

necessary to the adjudication of the claim in this Action shall be governed by the procedures set
forth in this Section 9. The inclusion of this paragraph does not mean that the Parties have agreed
that any such Source Code review or production is relevant and/or necessary to the adjudication
of the claims of infringement and validity at issue in this Action.
9.2

To the extent it is determined that analysis of the Source Code is necessary, only

those limited portions of the producing party’s Source Code that are relevant to the functionality
claimed in the Patents-in-Suit and any infringement or validity analysis thereof shall be made
available for review, and the parties agree to work together in good faith on this issue. Neither
Party shall be required to produce portions of its Source Code that are unrelated to such
functionality.
9.3

Protected Material designated as HIGHLY CONFIDENTIAL – SOURCE CODE

shall be subject to all of the protections afforded to HIGHLY CONFIDENTIAL – ATTORNEYS’
EYES ONLY information including the prosecution bar set forth above, and may be disclosed
only to the individuals to whom HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY
information may be disclosed.
9.4

Source Code shall be made available for inspection in its original directory

structure. The Source Code shall be in a format allowing it to be reasonably reviewed and

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searched, during normal business hours or at other mutually agreeable times, at an office of the
producing party’s Outside Counsel of Record or another mutually agreed upon location.
9.5

The Source Code shall not be zipped or otherwise need to be extracted or unpacked.

If multiple versions of Source Code are provided, they shall be clearly identified.
9.6

All persons who will review the Source Code on behalf of the receiving party shall

be identified in writing to the producing party at least seven business days in advance of the first
time that such person reviews the Source Code. Such identification shall be in addition to any other
disclosure required by this Order. The producing party shall provide these individuals with
information explaining how to start, log on to, and operate the Source Code Computer in order to
access the Source Code on the Source Code Computer.
9.7

For subsequent reviews by the same persons, the receiving party shall give at least

three business days (and at least seventy-two hours) notice to the producing party of the identity
of those persons who will review the Source Code a subsequent time. Requests made at least fortyeight hours in advance shall be accommodated if it is not burdensome to do so.
9.8

The Source Code shall be made available for inspection on a secured computer

(“Source Code Computer”) in a secured room without Internet access or network access to other
computers. The receiving party shall not copy, remove, or otherwise transfer any portion of the
Source Code onto any recordable media or recordable device. The producing party may monitor
the activities of the receiving party’s representatives during any Source Code review.
9.9

Upon a receiving party’s request and with at least seven business days’ notice, the

producing party shall bring the Source Code Computer to a deposition that will involve the Source
Code so that the witness can respond to questions regarding the Source Code during examination.

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9.10

The receiving party shall be entitled to take notes relating to the Source Code. The

notes may contain the names of Source Code classes, functions, and variables. The notes may
include any information as long as they do not contain more than five contiguous lines and fifty
total lines of actual, verbatim copied Source Code.
9.11

No electronic devices, including but not limited to cellular phones, PDAs, cameras,

and voice recorders will be permitted in the room with the Source Code Computer. Laptops may
be used during inspection of the Source Code for notetaking, provided such use is consistent with
this Stipulated Protective Order (e.g., any camera, wi-fi, or other non-permitted functionality will
not be used). The producing party must provide the receiving party’s Source Code reviewers with
a “breakout room” that is separate from the room containing the Source Code Computer, where
the receiving party’s Source Code reviewers may keep their cell phones, etc., and have access to
the Internet. Such notes, whether handwritten or taken electronically, shall not be the subject of
discovery or inquiry at trial. Any copies or printouts of the reviewers’ notes containing Source
Code should be marked HIGHLY CONFIDENTIAL-SOURCE CODE.
9.12

The producing party shall install tools that are sufficient for viewing and searching

the code produced on the platform produced, if such tools exist and are presently used in the
ordinary course of the producing party’s business. The receiving party’s outside counsel,
consultants, and/or experts may request that commercially available software tools for viewing
and searching Source Code be installed on the Source Code Computer, provided, however, that (a)
the receiving party or the producing party possesses an appropriate license to such software tools;
(b) the Producing Party approves such software tools, said approval not to be unreasonably
withheld; and (c) the receiving party reasonably believes that such software tools would assist the
receiving party in performing its review of the Source Code consistent with all of the protections

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herein. Unless the requested software tools are already available to the producing party, the
receiving party must provide the producing party with such licensed software tool(s) at least four
(4) days in advance of the date upon which the receiving party wishes to have the additional
software tools available for use on the Source Code Computer.
9.13

The Source Code Computer shall include tools to reasonably facilitate an

expeditious and efficient inspection of the Source Code. The Parties will work together in good
faith to disclose information that will facilitate such efficiency. Subject to the preceding paragraph,
the receiving party will include these tools on the source-code computer.
9.14

The receiving party may also have installed additional tools on reasonable notice

and request, and at its own expense unless the producing party can have the additional tools
installed at no out-of-pocket cost. The receiving party must provide the producing party with the
CD or DVD (or download link) to any such tool(s) at least seven business days in advance of the
date upon which the receiving party wishes to have the tool(s) available for use. Should it be
necessary, other mutually agreed upon tools may be used with the receiving party undertaking
actions to enable the same. The producing party may object to the use of any tool requested by the
receiving party pursuant to this paragraph, but must do so by notifying the receiving party of its
objections and the reasons for its objections within three business days after the reasonable written
notice and request (or other reasonable period, depending on the circumstances).
9.15

Subject to paragraphs 9.16-9.17, the receiving party may request receipt of printed

paper copies of limited portions of Source Code that are reasonably necessary for the preparation
of court filings, pleadings, expert reports, or other papers, or for deposition or trial, but shall not
request paper copies for any other purpose including the purposes of reviewing the Source Code
other than electronically as set forth above in the first instance. The receiving party shall not

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request the printing of Source Code solely to review blocks of Source Code elsewhere, i.e., as an
alternative to reviewing that Source Code electronically on the Source Code Computer.
9.16

The receiving party may request printed copies of Source Code by identifying

relevant folder name(s), file names(s), starting and ending line numbers and/or other relevant
information sufficient to specify the portions to be printed. After reviewing the print request for
compliance with this Protective Order, and subject to any challenge, the producing party shall
prepare and provide to the receiving party all such Source Code in paper form, including bates
numbers and the label “HIGHLY CONFIDENTIAL - SOURCE CODE” either (i) on-site where
the Source Code is printed or (ii) by delivery no later than five business days after such Source
Code is printed (unless otherwise agreed to by counsel).
9.17

If the producing party objects that the requested printed portions are excessive

and/or not done for a permitted purpose, the producing party shall make such objection known to
the receiving party within five days. If the parties are unable to resolve the dispute, the receiving
party shall have the burden of demonstrating that the requested printouts are reasonable and
necessary per the terms of this Protective Order.
9.18

The receiving party shall maintain a record of any individual who has inspected any

portion of the Source Code in electronic or paper form. The receiving party shall maintain all paper
copies of any printed portions of the Source Code in a secured, locked area. The receiving party
shall not create any electronic or other images of the paper copies and shall not convert any of the
information contained in the paper copies into any electronic format. The receiving party shall
only make additional paper copies if such additional copies are (1) necessary to prepare court
filings, pleadings, or other papers (including a testifying expert’s expert report), (2) necessary for
deposition, or (3) otherwise necessary for the preparation of its case. Any paper copies used during

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a deposition shall be retrieved by the producing party at the end of each day and must not be given
to or left with a court reporter or any other unauthorized individual.
9.19

If a party determines in good faith that any Source Code must be filed with the

Court, it shall provide the receiving party at least seven days-notice prior to doing so work in good
faith with the producing party to identify the smallest amount of Source Code necessary to be filed.
Such Source Code must be filed under seal in accordance with Local Civil Rule 6.1.
SO ORDERED.

Signed: November 17, 2022

STIPULATED AND AGREED:
/s/_________________________________
Daniel J. Schwartz (admitted pro hac vice)
Matthew A. Werber (admitted pro hac vice)
Nixon Peabody LLP
70 West Madison, Suite 3500
Chicago, IL 60602-4224
Telephone: [phone]
[e-mail]
[e-mail]

_________________________________
John F. Morrow, Jr.
N.C. Bar No. 23382
Womble Bond Dickinson (US) LLP
One West Fourth Street
Winston-Salem, NC 27101
Telephone: [phone]
Facsimile: [phone]
[e-mail]

Michael G. Adams
N.C. Bar No. 16528
Nicholas H. Lee
N.C. Bar No. 47885
PARKER POE ADAMS & BERNSTEIN LLP
620 South Tryon Street, Suite 800
Charlotte, North Carolina 28202
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]

Counsel for Defendant PCI Pal (US) Inc.

Counsel for Plaintiffs

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EXHIBIT A

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
SYCURIO LIMITED and SYCURIO, INC.
Plaintiffs,
DOCKET NO. 3:21-cv-00486-MOC-DSC
v.
PCI PAL (U.S.) INC.,

AGREEMENT TO BE BOUND BY
PROTECTIVE ORDER

Defendant.

I, ____________________________, hereby acknowledge that I received a copy of the
Protective Order in this action. I read and understood the Protective Order and agree to be bound
by its provisions. I agree not to copy or use any CONFIDENTIAL or HIGHLY CONFIDENTIAL
– ATTORNEY EYES ONLY information that may be provided to me for any purpose other than
in connection with this action, and I agree not to reveal any such information to any person not
authorized by the Protective Order.
I further acknowledge and understand that a violation of the Protective Order may subject
me to penalties of the Court, and I hereby submit to the jurisdiction of the United States District
Court for the Western District of North Carolina in connection with any proceedings concerning
enforcement of the Protective Order.

Dated: __________________

_________________________

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