Performance Pricing, Inc. v. Google Inc. et al

Filing 241

MOTION to Compel Production of Documents by Third Parties Neal Cohen and Vista IP Law Group, LLP by AOL LLC, Google Inc.. (Attachments: # 1 Joint Stipulation Regarding Defendant Google Inc. and AOL LLC's Motion to Compel Production of Documents by Third Parties Neal Cohen and Vista IP Law Group, LLP, # 2 Declaration of Emily C. O'Brien in Support of Motion to Compel, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H, # 11 Exhibit I, # 12 Exhibit J, # 13 Exhibit K, # 14 Exhibit L, # 15 Exhibit M, # 16 Exhibit N, # 17 Exhibit O, # 18 Exhibit P, # 19 Declaration of Christin Cho in Opposition to Motion to Compel, # 20 Errata 1, # 21 Exhibit 2, # 22 Exhibit 3, # 23 Proposed Order Granting Defendant Google Inc. and AOL LLC's Motion to Compel)(O'Brien, Emily) Modified on 9/25/2009 (sm, ). Modified on 9/25/2009 (sm, ).

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IN TEIE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIViS[ON PERFORMANCE PRICCNG, INC., Plalnt^ff,
v.

Case No. 2:07-cv-^32 (LE©) JURY TRIAL DEMANDED

GOOGLE INC., AOL LLC, M[CROSOCf CORPORATION, YAHOO! INC.,
[AC SEARCH & MEDIA, INC., and A9_COM, INC., Defendants.

AGREED PROTECTIL 'E ORDER To expedite tlfe Elo^^' of discovery materials, to Facilitate the prompt resolution ofdisputes over confidentiality ofdiscovery materials, to adequate [}· protect information the parties are entitled to E:eep confidential , to ensure that only materia l s the parties are entitled to Veep confidential are subject to such treatment , and to ensure that the parties are permitted reasonably necessary uses of such materials in preparation far and in the conduct of trial, pursuant to I=ed. R. Civ_ P. 26{c), it is HEREBY ORDERED THAT:

INI.ORMATION SU[3,IECT TC TI^IS ORDER
Discovery materials produced in this case ma^^ 6e labeled as one of three categories:

CONF[DEN^'IAL, CONFIDENTCAL ATTORNEYS' EYES ONLY and RESTRICTCD
CONFIDENTIAL -SOURCE CODE, as set forth in items A-C below. All three of the identified categories of information shall be identified collectively in this Order by the title "Protected Information." Any documents derived from or containing "Protected Information" must also be designated with the appropriate category of confidentiality, according to the terms of this Order.

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A.

Information Designated as Confidential l;nformation

For purposes of this Order, "CONF[DENTIAI_. INFOREviATION" shall mean alt
information or material produced for or disclosed to a receiving party that a producing party, including any party to this action and any non-party producing information or material -

volnrttarily or pursuant to a subpoena or a court order , considers to constitute or to contain trade secrets or other confidential research and development , technical, sales, marketing , financial, personnel , customer , vendor , or other commercial information , whether embodied in physical objects, documents, or the factual knowledge of persons , and tivhich has been so designated by the producing party. Any CONFIDENTIAL INFORMATION obtained by any party from any person pursuant to discovery iti this litigation may be used only for purposes of this iitigation_ ?. Any document or tangible thing containing or including any CONFIDENTIAL

CNFORMATION ma}' be designated as such by the producing party by marking it "CONFIDENTIAL" prior to or at the time copies are Furnished to the receiving party. 3_ All CONFIDENTIAL CNFORNIATION not reduced to documentar}·, tangible or

physical form or which cannot be conveniently designated as set forth in paragraph 2, shall be designated by the producing part }· by informing the receiving part}' of the designation in writing_ 4. Except as other^ti-ise provided in paragraph 9, an}· documents (including physical

objects ) made available for inspection by counsel for the receiving party prior to producing copies of selected items shall initially be considered, as a whole, to constitute CONFIDENTIAL ATTORNEYS' E^`ES ONLY information and shall be subject to this Order. Thereafter, the producing part }· shall have a reasonable time to review and designate the appropriate documents as CONFIDENTIAL, CONFIDE-'NT(AL ATTORNEYS' EYES ONI 1' or RESTRICTE(J CONFIDENTIAL - SOURCI^ CODE prior to furnishing copies to tltie receiving party.

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The following are examples of information Chat is not CONFIDENTIAL

[NFOCLivIAT[ON:
a. b. C'ubiished advertising materials; Any information which is ar, after its disclosure to a receiving party,

becomes part of the public domain as a result of publication not involving a violation of this Order; c. Any information [ hat the receiving party can show by written records was

ahead}' known to it prior to the disclosure, provided that it was either l) received from the producing part}· and was not received under an obligation ofconftdentialit }' to the producing party, or ?} received from a source cvho obtained the information lawfully and under no obligation of confidentiality to the producing part} ; d. Any information which the receiving party can show by written records

was received by it after the disclosure from a source cvho obtained the information la^cfully and under no obligation ofcanfdentiality to the producic^g part}·; and e. Any information 4t^hich the receiving party can sho4^^ vas independently

developed 6y it after the tirtte ofdisclosure by personnel who did not leave access to the producing party's CONFIDI NTIAL INFORMATION. 6. Documents designated CONF[DENTCAL and information contained therein shall

be available onf}' to: a. Outside litigation counsel of record and supporting personnel employed in

or b}' the la^v firm(s) of outside litigation counsel of record, such as attorneys, paralegals, legal translators , legal secretaries, legal clerks, and shorthand reporters;

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b.

"['echnical advisers and their necessary support personnel , subject to the

provisions ofparagraphs [2-i6 herein, and who have signed the form attached hereto as Attachment A; c. Up to three (3} in-house counsel with responsibility for managing this

litigation, up to three (3) employees in a party's legal department necessary to assist them in this [itigation (i.e. clerical staff or paralegals), and one employee of a party who either has
responsibility for making decisions dealing directly with the litigation in this action or who is assisting outside counsel in preparation for proceedings in this action who have signed the form attached hereto as Attachment A, except that defendants' employee, in-house counsei, paralegals or clerical employees under this paragraph shall not have access to any co-defendants' CONFiDENT[AL material;

d.

The Court, its personnel and stenographic reporters (under seal or with

other suitable precautions determined by the Court}; and e. [ndependent legal translators retained to translate in connection with this

action; independent stenographic reporters and videographers retained to record and transcribe testimony in connection with this action; f. Graphics, translation, or desifn services retained by counsei for purposes

of preparing derttonstrative or other exhibits for deposition, trial, or other court proceedings in the actions; non-technicaE jury or trial consulting services including mock jurors who have signed the forltt attached hereto as Attachcrtent A (mock jurors may be shown Confidential Information, but may not be given a copy}; and g. Commercial copy vendors retained by counsel for purposes of this action

^vho have signed the form attached hereto as Attachment A.

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information Designated Confidential Attorneys` Eyes Oniy

7.

The CONFIDENTIAL ATTORNEYS' EYES ONLY designation is reserved for

CONFIDENTIAL INFORMATION that constitutes commercially sensitive competitive information which is likely to cause harm to the competitive position of the producing party; CONFIDENTIAL information obtained from a nonparty pursuant to a current Nondisclosure Agreement ("NDA"); and settlement agreements or settlement communications, the disclosure of which is likely to cause ltarrr^ to the competitive position of the producing parry. In determining whether information should be designated as CONFIDENTIAL ATTORNEYS' EYES ONLY, each party agrees to use such designation only in good faith. S. Documents designated CONFIDENTIAL ATTORNEYS' EYES ONLY and

information contained therein shall be available only to: a. Outside litigation counsel of record and supporting personnel employed in

the lau· firm(s) of outside litigation counsel of record, such as attorneys, paralegals, legal translators, legal secretaries, legal clerks, and shorthand reporters; b. Up to three (3} in-house counsel with responsibility for managing this

litigation an ^ up to three (^}employees in a party's legal department necessar}' to assist them in this litigation ( i.e. clerical staff or paralegals), with the prior written consent of the producing parh^ , who have signed the form attached hereto as Attachment A, except that defendants` inhouse counsel , paralegals or clerical employees under this paragraph shall not have access to any co-defendants ' CONFIDENTIAL ATTORNEYS' EYES ONI Y material;

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c.

Technical advisers and their necessary support personnel, subject to the

provisions of paragraphs [2-6 herein, and who have signed the form attached hereto as
Attachment A;

d.

The^Court, its personnel and stenographic reporters (under sea[ or with

other suitable precautions determined by the Court); and e. independent stenographic reporters and videographers retained to record

and transcribe testimony in connection with this action; f. Graphics, translation, or design services retained by counsel for purposes

of preparing demonstrative or other exhibits for deposition, trial, or other court proceedings in the actions; non-technical jury or trial consulting services not including mock jurors who have signed the form attached hereto as Attachment A; g. Commercial copy vendors retained by counsel for purposes of this action

who have signed the form attached hereto as Attachment A; and h. action. C. Information Designated Restricted Conbdential -Source Code Documents or other things that contain a party's source code may be designated "Rl STR[CTED CONI+CDENT[AL-SOURCE CODE", if they constitute contidetttiai, proprietary andlor trade secret soured code or object code . Other documents or things that include confidential , proprietary and/or trade secret source code or object code may be designated ItEST(^CTED CONFIDENTIAL -SOURCE CODE only if confidential , proprietary and/or trade secret source code or object cannot reasonably be segregated from the document or thing. The source code may be made available for review at a single secure site at the producing party's ndependent legal translators retained to translate in connection tirith this

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discretion , either (I) at the producing party` s counsel's of[ice or (2) at another single secure site selected by the Producing Party. The following conditions shalt govern the production, review and use of source code information. 9.All source code produced shall be deemed designated as "RESTRCCTED

CONFIDENTIAC -SOURCE CODE." All such source code, and any other Protected Information designated as "RESTRICTED CONF[DivNTCAI, -SOURCE CODE," shall be
subject to the following provisions: a. Al[ source code will be trade available by the producing party to the

receiving party` s outside counsel and/or technical advisors in a private room on a secured computer without Internet access or network access to other computers, as necessary and appropriate to prevent and protect against any unauthorized copying, transmission, removal or other transfer of any source code outside or away from the computer on which the source code is provided for inspection (the "Source Code Computer")_ The producing party shall be obligated to instal! such tools or programs necessary to review and search the code produced on the platform produced. b. The receiving party 's outside counsel andlor technical advisors shall be

entitled to take notes relating to the source code I gut ]nay not copy the source code into the notes. Such notes shall be subject to the provisions of section 9{g}, belotiv. No copies ofall 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. c. The producing party shalt make available a laser printer with

commerciall} reasonable printing speeds for on-site printing during inspection of the code_ The

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receiving party may print portions of the source code only tivhen reasonably necessary to facilitate the receiving party's preparation of the case, inc#uding when reasonably necessary to prepare any f ling with the Court or to serve any pleadings or other papers on any other party; to prepare internal attorney work product materials; or to prepare other necessary case materials such as testifying expert reports, consulting expert written analyses and related drafts and correspondences. The receiving party shaii print only such portions as are reasonably necessary for the purposes for which any part of the source code is printed at the time. #n no event may the receiving party print mare than 25 consecutive pages and no rnore than 500 pages of source code in aggregate during the duration of the cast without prior written approval by the producing party. Upon printing any such portions of source code, the printed pages shaii be collected by the producing parry. The producing party shall Bates number, copy, and label "REST#LICTED CONF#DENT#AL SOURCE CODE" any pages printed by the receiving party. tithe producing party objects that the printed portions are not reasonably necessary to any case preparation activity, the producing party shall make such objections known to the receiving party within five (5} business days. #f after meeting and conferring tl;e producing party and Ehe receiving party cannot resolve the objection, the producing party shaii be entitled to reel; a Court resolution of tivhether the printed source code in question is not reasonably necessary to anr· case preparation activity_ (n the absence of any objection, or upon resolution of any such dispute by the Court, the producing party shall provide one cop}' set of such pages to the receiving party within five (^) business days and shaii retain one copy set. The printed pages shaii constitute part of the source code produced by the producing part}^ in this action_

d-

A list of names of persons ^vho will view the saurce code ^vii# be provided

to the producing party in conjunction with any written including email} lfotice requesting

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inspection. The receiving party shall maintain a daily log of the names of persons who enter the locked room to view the source code and when they enter and depart. The producing party shall be entitled to have a person observe all entrances and exits from the source code viewing room, and to a copy of the log_ e. Unless otherwise agreed in advance by the parties in writing, following

each inspection, the receiving party's outside counsel and/or technical advisors 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. f. Other than as provided in Paragraph 9{c}above , 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 equip3-nent_ The receiving party will not transmit any source code in any «^ay from the producin? party's facilities or the offices of its outside counsel of record-

a-

The outside counsel and Technical ^deTisors {who have been approved to

access source code under paragraphs 1?-16} far a receiving party shall maintain and store any paper copies of the source code or notes related to such source code {as referenced in paragraph b of this section) at their offices in a manner that prevents duplication of or unauthorized access to the source code or notes, including, without limitation, storing the source code or notes iu a locked roam or cabinet at all times a^·hen it is not in use; h. The Receiving Party's outside counsel of record ma}' make no mare than

five additional paper copies of any portions of the source code printed pursuant to sub-paragraph 9{c), not including copies attached to court f lings, and shall maintain a log of all copies of the

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source code {received from a Producing Party} that are provided by the Receiving Party to any qualified person under sub-paragraph (m) belacv of this section. The log shall include the names of the recipients and reviewers of copies and [ocatinns where the copies are stored. Any paper copies of source code sha[! be Stored or viewed only at (i) [he offices of outside counsel for the Receiving Party, (ii) the offices of Technical Advisors who have been approved to access source code under paragraphs 1 Z-16; (iii) the site where any deposition is taken; (iv) the Court; or {v) any intermediate location necessary to transport the information to a hearing, trig! or deposition. Any such paper copies shat! be maintained at all times in a locked and secure location. The producing party shall not unreasonably deny a receiving party's request to make (and log) additional copies, providing that the request is for good cause and for use that otherwise

complies 4vith this order. The producing party shall be entitled to a copy of the log upon request; and at the conclusion of the litigation. The receiving part}· may include excerpts of source code in a pleading, exhibit , expert report, discover }' document, deposition transcript , other Court document, or any drafts of these documents ("SOURCE CODE DOCUMENTS"). "fhe receiving party shat[ only include such excerpts as are reasonably necessar }' For the purposes for which such part of the source code is used- as an example, excerpts of approximately 2^ to 40 lines in length would be allowed. j. To the extent portions of source code are quoted in a SOURCE CODE

DOCUMENT , either {i ) the entire document ^vill be stamped Ri STR[CTED CONFCDENT[A[. - SOURCE CODE or {Z) those pages containing quoted source code will be separately bound, and stan^ped as RESTRCCTED CONELDENT[Alr - SOURCE CODE_ All SOURCE CODE DOCUMENTS shall be filed under seal.

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All paper copies shat! be securely destroyed if they are no longer

necessary in the litigation (e,g. extra copies at the conclusion of a deposition). Copies of source code that are marked as deposition exhibits shall not be provided to the Court Reporter or attached to deposition transcripts; rather, the deposition record will identify the exhibit by its production numbers. I. . The Receiving Party may not create electronic images, or any other

images, of the source code from the paper copy for use on a computer (e.g., play not scan the source code to a PDF, or photograph the code}. The Receiving Party may create an electronic copy ar image of selected portions of the source code onl}· 4vhen reasonably necessary to accomplish any filing 4ti·ith the Court or to serve an}^ pleadings or other papers on any other party

(including expert reports). [tnages 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. m. Source code will onl^^ be madz available to indi^^iduals specified in

Paragraph 8(a) (c} (d) and (e) above (e.;., source code ma^· not be disclosed to in-house counsel}_

PROSECUTiOI^f BAR I0. "C'he "PROSECUTION BAR" materials refers to those CONFCDENTIAL

INFORMATION, CONFIDENTIAL ATTORNEYS' E1^'ES ONLY, and RESTRICTED
CONFIDENTIAL-SOURCE CODE-designated materials and documents comprising or containing non-public technical information, such as source code, system diagrams, flo^+ charts, white papers, engineering specifications, research and development materials and the like. The following documents and materials shall not be considered or classified as PROSECUTION BAR materials: (i) publications, including patents and published patent applications; (ii}

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materials regarding third party systems or products that ^vere publicly known, on sale, or in public use before June 24, 1444; and (iii) information that is publicly available. tI. Any person reviewing any of an opposing party's PROSECUTCON BAR

materials shat! not, for a period commencing upon receipt of such information and ending one year following the conclusion of this ease {including any appeals} engage in any _

PROSECUTCON ACTCVITY on behalf of a party asserting a patent in this case or any successor in ownership, assignee , or exclusive licensee of a patent asserted in this case. Furthermore, any person reviewing PROSECUT[ON SAR materials ofanother person shall not, for a period commencing upon receipt of such information and ending one year following the date a party provides a certification of destruction or return of all Protected Cnformation (pursuant to paragraph 33 of this Protective Order} engage in any PROSECUTION ACTNCTY involving clai^r^s on a method, apparatus or system For price determination based on a buyer's activity, or the placement of advertisements on the Internzt. PROSECUTION ^.CTIVITY shall mean: (t } prepare and/or prosecute or otherwise aid in preparing ar prosecuting any patent application {or portion thereof), whether design or utility, and either in the United States or abroad on behalf of a patentee or assignee of patentee's rights; (3) prepare or otherwise aid in the drafting of patens claim(s) on behalf of a patentee or assignee of patentee's rights; (3) For a patent application, reissue, or reexamination proceeding on behalfof the patentee ar assignee of patentee's rights, provide advice, counsel or suggestions regarding claim scope andior language, embodiment(s) for claim coverage, clailn(s} for prosecution, or products or processes for coverage by claim(s). For the avoidance ofdoubt, in connection with a reexamination or reissue proceeding, preparing an anal }'sis of Prior Art as compared to the existing claims of a patenC or preparing anonobviousness analysis as compared to the e^cisting claims of a patent would not be

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PROSECUTION ACT[V1TY. Ivor the avoidance ofdoubt, this section does not prevent any attorney from challenging the validit}f or enforceability of any patent, including without limitation , in proceedings in this court or reexamination or reissue proceedings in the United States or foreign patent offices. The parties expressly agree that the PROSECUTIONBAR set forth herein shall be personal to any attorney who reviews PROSECUTION BAR material and _ shall not be imputed to any other persons or attorneys at the attorneys' lativ fum or company. Moreover, the mere fact ofa first attorney sending Prior Art to a second attorney , where the second attorney is involved in PROSEC [IT10N ACTIVITY shall not be construed as involvement by the first attorney in PROSECUTION ACTlV1TY . Prior Art shall mean (i) publications , including patents and published patent applications; and (ii) materials or information regarding third part}° systen3s or products that were publicly known , on sale, or in public use before Lune 29, 1999 , unless such materials are PROSECUTION BAR materials ofa third party ^vho has produced the material , pursuant to the terms of this Protective Order. DISCLOSURC Op' TECE-ElV[CAL ADy'[S^:RS l2. information designated by the producing party under any category of Protected

Information and such copies of this information as are reasonably necessary for maintaining: defending or evaluating this litigation may be furnish<^d and disclosed to the receiving party's technical advisers and their necessary support personnel. The term "technical adviser" shall mean an independent, outside ehpert witness or consultant with whom counsel may deem it appropriate to consult and whom complies with paragraph I ^4. i3_ No disclosure of Protected Information to a technical adviser or their necessary

support personnel sl3alE occur until that person has signed the Form attached hereto as Attachment A; and to the extent there has been an objection under paragraph 16, that objection is resolved as discussed belo4^^_
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A party desiring to disclose Protected Information to a technical adviser shall also

give prior written notice to the producing party, ^vho shaft have seven (7) business days after such notice is given to object in writing. The party desiring to disclose Protected Information to a technical adviser must provide the following information for each technical adviser: name, address, curriculum vitae, current employer, and employment {including consulting} history for the past four {4}years, and a listing of cases in 4vhich the witness has testified as an expert at trial or by deposition within the preceding four years. No Protected information shall be disclosed to such experts} or consultants}until after the expiration of the foregoing notice period. l>. A party objecting to disclosure of Protected Cnformation to a technical adviser

shall state with particularity the ground{s) of the objection and the specife categories of documents that are the subject of the objection. The objecting party`s consent to the disclosure of Protected Information to a technical adviser shall noE be unreasonably witftheld. [ts objection must be based on t(Eat party-'s good faith belief that disclosure of its Protected Information to the technical adviser substantial(}· rislws non-trivial competitive business or econarnic harm to that party (under any safeguards proposed if the technical advisor is allowed access), and the objection must describe evitlt particularity the harm risked by the disclosure of the Protected Inforirlatio ^. The objecting party shat{ have tfie burden of showing to the Court good cause For preventing disclosure of its Protected information to the technical adviser. td. If after consideration of the objection, the part- desiring to disclose the Protected

Information to a technical adviser refuses to ^vithdra4v the technical adviser, that part}^ shall provide notice to the objecting party. Whereafter, the objecting party shall move the Court, within seven (7} business days of receiving such notECe, for a ruling on its objection. A failure to file a motion cvithin the seven (7) business day period shall operate as an approval of disclosure of the

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Protected Information to the technical adviser. The parties agree to cooperate in good faith to shorten the time frames set forth in this paragraph if necessary to abide by any discovery or briefing schedules.

CHALLENGES TO CONFIDENTIAC,ITY DESIGNATIONS
l7. The parties shall use reasonable care when designating documents or information

as Protected Information. Nothing in this Order shall prevent a receiving party from contending that any documents or information designated as Protected lnfora^ation have been improperly designated. A receiving party may at any time request that the producing party cancel or modify the Protected fnfom^ation designation with respect to any document or information contained therein. 18. A party shall not be obligated to challenge the propriety of a designation of any

category of Protected Information at the time of production, and a failure to do so shall not preclude a subsequent challenge thereto. Such a challenge shall be written, shall be served on counsel For the producing party, and shall particularly identify the documents or information that the receiving party contends should be differently designated. The parties shall use their best efforts to resolve promptly and informali_r· such disputes. if an agreement cannot be reached, the receiving party shall request that the Court cancel or modify a designation. The burderi of demonstrating the confidential nature of any information shall at a!t Cimes be and remain on the designating party. 19. Z_lnti(a determination by the Court, the information il^ issue shall be treated as

having been properl^· designated and subject to the terms of this Order.

LIMITATIONS ON THE USE OF PROTECTED INFORMATION
20. All Protected (nformation shall be held in confcdence by each person to wham it

is disclosed, shall be used only for purposes of Chis litigation , shall nQt be used for any business
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purpose, and steal! not be disclosed to any person who is not entitled to receive such information as herein provided. All produced Protected Cnfortnation shall be carefully maintained so as to preclude access by persons who are not entitled to receive such information. 2l. Except as may be otherwise ordered by the Court, any person may be examined as

a witness at depositions and trial and ma} testify concerning all Protected (nformation of which such person has prior knowledge. Without in any way limiting the generality of the foregoing:
a. A present or farmer director, officer, or erployee of a producing party

may be examined and may testify at deposition or trial concerning ail Protected [nformation which has been produced by that party and either { l) identifies on its face the director, officer, andlor employee as an author or recipient, (2} concerns a subject matter of which the director, officer andlor employee has knowledge or (3) concerns a topic about which said director, officer, andlor employee has been identified or designated to testify regarding. b. technical advisor of a producing party of this Order may be examined and

may testify at deposition or trial concerning ail Protected (nformation tivhich has been produced by that party and all other Protected information to which he or sloe is alio^^°ed access under the terms of this Protective Order. c. Non-parties may be examii ed or testify° ai deposition or trig[ concerning

any document containing Protected information of a producing part}^ 4vhich appears an its face or from other documents or testimony to have been received from or communicated to the nonparty as a result of an}^ contact or relationship with the producing party or a representative of fife producing party, but may not retain originals or copies of such Protected (nformation or any notes or transcripts reflecting such Protected (nformation, other than for the limited period of time necessary to review any deposition transcripts and make corrections. _'^ny person other than

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the witness, his or her attorney(s), or any person qualified to receive Protected Information under this Order shall be excluded from the portion of the examination concerning such inforcr ^ation, unless the producing party consents to persons other than qualified recipients being present at the examination. 1·f 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 shah request that the attorney provide a signed statement, in the forrn of Attachment A hereto, that he or she will comply with the terms ofthis Order and maintain the confidentiality ofProtected Information disclosed during the course of the examination. In the event t#tat such attorney declines to sign such a statement prior t4 the examination, the parties, by their attorneys, shall jointly seek a protective order from the Court prohibiting the attorne}· from disclosing Protected Information. 22. All transcripts of depositions, exhibits, ans^t^ers to interrogatories, pleadings,

briefs, and other documents submitted to the Court r^·hich have been designated as Protected Information or which contain information so designated, shall be filed under seat in a manner prescribed by the Court for such filings. 23. Outside attorneys of record for the parties are hereby authorized to be the persons

who may retrieve confidential exhibits andr'or other confidential rnatlers filed with tine Court upon terl ^ination 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 f led shall be released except by order of the Court, to outside counsel of record, or as otherwise provided for hereunder. Notwithstanding the foregoing and tit^ith regard to material designated as RESTRICTED CONpIDENTIAL-SOURCE CODE, the provisions of Section C are controlling to the extent those provisions differ front this paragraph.

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24.

Protected Information shalt not be copied or otherwise produced by a receiving

party , except for transmission to qualified recipients, without the Svritten permission of the producing party, or, in the alternative, by further order of the Court. Nothing herein shall, however, restrict a qualified recipient from maleing working copies, abstracts, digests and analyses of Protected information for use in connection 4vith this liiigatian and such working copies, abstracts , digests and analyses shall be deemed Protected Information under the terms of this Order. Further , nothing herein shall restrict a qualified recipient from converting or translating Protected Information other than RESTRICTED CONF[DENT(AIvSOURCE CODE material into machine readable form for incorporation into a data retrieval system used in connection with this action , provided that access to [hat Protected Information , in whatever form stored or reproduced, shall be limited to qualified recipients.
2^. At the request of any party, the ariginat and ail copies of any deposition transcript,

in whole or in part, shall be marked "CONFIDENTIAL, CONFIDENTIAL ATTORNEYS' EYES ONLY and/or RESTRICTED CONFIDENTIAL----SOURCE CODE" b}' the reporter. This request may be made orall}' during the deposition or in writing within fifteen (I ^) days of receipt of the final certified transcript _ Deposition transcripts shall be treated as CONFIDENTLAL ATTORNEYS' EYES ONLY until the expiration of the time to make a confidentiality designation . Any portions so designated shall thereafter be treated in accordance v<<ith the terms of this Order. 26. Where Protected [nformation is used at trial, it is the burden of the Designating

Party whose documents or materials are being used w make arrangements with the Court to ensure that its Protected Information remains confidential; however, where Protected Information is to be used at trial by a party other than the Designating Party, the Designating

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Party must be notified at least I0 days before trial, so [llat the Designating Party is able to make arrangements with the Court to ensure that its Protected Information remains confdential_ NONPARTY USE OF TIi [ S PROTECTIVE ORDER 27. A nonparty producing information or material voluntarily or pursuant to a

subpoena or a court order may designate such material or information as Protected Information pursuant to the terms of this Protective Order. 2$. A nonparty's use of this Protective Order to protect its Protected [ nformation does

not entitle that nonparty access to the Protected Information produced by any party in this case. NO WAIVER Olt PRIVILEGE 29. Nothing in this Protective Order shall require production of information that a

party contends is protected from disclosure by the attorney -client privilege, the ^vorl: product immunity or other privilege , doctrine, right, or immunity . If information subject to a claim of attorney -client privilege, work product immunity, or other privilege, doctrine, right , or irrlmunit}' is nevertheless inadvertently or unintentionally produced , such production sllali in no cvav prejudice or otherwise constitute a cvai^·er or , or estoppel as to, arty such privilege , doctrine, right or immunity_ Ifany party lnadvertenlty or unintentlonall }' produces materials protected under the attorney -client privilege, work product ilnmurit^ ·, or other privilege, doctrine , right, or immunity, any holder of that privilege , right, or immunity may obtain the return of those materials by notifying the recipient(s) promptly after the discover }' of the inadvertent or unintentiona# production and providing a privilege tog far the inadvertentl}^ or unintentionally produced materials _ The recipients} shalt gather and return alt copies of the privileged or immune material to the producing party, except for any pages containing privileged markings by the recipient, which pages shall instead be destroyed and certified as such by the recipient to the producing part}^. Notwithstanding this provision , no person is required to delete information that may reside
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on the respective person's electronic back-up syster3^s that are over-written in the normal course of business. MISCELLANEOUS PROVISIONS 30. Any of the notice requirements herein may be waived, in whole or in part, b^t

only in writing signed by an outside counsel of record for the party against whom such waiver will be effective. 3 t. Inadvertent or unintentional production of documents or things containing

Protected Information which are not designated as one or more of the three categories of Protected Cnformation at the time of production shalt not be deemed a waiver in whole or in part of a claim For conFidential treatment. The producing party shall notify the receiving parties
promptly after the discovery of the error in writing and, with respect to documents , provide replacement pages bearing the appropriate conl=<dentiatity legend. In the event of any

unintentional or inadvertent disclosure of Protected Information other than in a manner authorized by this Protective Order , counsel for the part }· responsible for the disclosure shall immediatet }· notify opposing counset ofall of the pertinent facts, and make every effort to further prevent unauthorized disclosure including, retrieving all copies of the Protected Information Eton: the recipient(s) thereof, and securing the agreement of the recipients not to further disseminate the Protected Information in any form . Compliance with the foregoing shall not prevent the producing party from seeking further relief front the Court. 32. Within sixty (50) days after the entry of a Iinal non-appeaiabfe judgment or order,

or the complete settlement of ail claims asserted against all parties iz^ this action, each party shall, at the option of the receiving party, either return or destroy aft physics! objects and documents which embody Protected Information it has received, and shall destroy in whatever force stored or reproduced, all physiea# objects and documents. including but not limited to, correspondence,
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memoranda, notes and other work product materials, which contain or refer to any category of Protected Information. Ali Protected information, not embodied in physical objects and documents shall remain subject to this Order. Notwithstanding this provision, no person is required to delete information that may reside on the respective person's electronic back-up systems that are aver-written in the normal course of business. Notwithstanding the foregoing, outside counsel shall be entitled to maintain copies of all correspondence, pleadings, motions and trial briefs (including all supporting and opposing papers and exhibits thereto}, written discovery requests and responses (and exhibits thereto), deposition transcripts {and exhibits thereto), trial transcripts, and exhibits offered or introduced into evidence at any hearing or trial, and their attorney tivork product which refers or is related to any CONI' IDENTiAL and CONECDENT[AL ATTORNEYS' EYES ONLY information for archival purposes only, except such outside counsel shall not retain any RESTRICTED CONPiDENTIAL-SOURCE CODE materials. If a party destroys Protected information, the destruction must be by means satisfactory to the producing party. and the party must provide a Certificate of Destruction to the producing part}·. 33. ifat any time documents containing Protected (nformation are subpoenaed by an}·

court, arbitral, administrative or legislative body, the person to ^vi^om the subpoena or other request is directed shall immediately give «^ritten notice thereof to ever}' part' who ha ^ produced such documents and to its counsel and shall provide each such party with an opportunity to object to the production of such documents. if a producing party does not take steps to prevent disciasure of such documents within ten (10) business days of the date written notice is biven, the part}^ to whom the referenced subpoena is directed nay produce such documents in response thereto.

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34.

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 proteetians 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 tivould otherwise violate the terms herein. 35_ Nothing in this Order shall restrict any party to this lawsuit or its attorneys from

disclosing or using, in any manner and for any purpose, its own Protected Information. 3b. The United States District Court for the Eastern District of Texas, fVlarshall

Division, is responsible for the interpretation and enforcement ofthis Agreed Protective Order_ After termination ofthis litigation, the provisions of this Agreed. Protective Order shall continue to be binding except with respect to those documents and information that become a matter of public record- This Court retains and sha11 have continuing jurisdiction o;'er the parties and recipients of the Protected Information for enforcement of the provision ofthis agreed Protective Order foliotiving termination of this litigation- Ail disputes concerning Protected Information produced under the protection of this Agreed Protective Order shall be resolved by the United States District Court for the Easte ^n District of Texas, Marshall Division_ 37. Document discovery concerning testifying experts shall be limited to the final

versions of their expert reports; materials relied upon, and their invoices for wort: performed. Testifying experts' draft reports, notes, and communications with counsel will not be subject to document discovery, except to the extent relied upon by the expert in the final version of his or her report(s). The foregoing does not restrict discovery by oral deposition, and does not obligate any party to retain draft reports.

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So ORDERED and SIGI^[ED this 13th day of .Iuly, 2008.

IOFIN D. Ot'E UNiT^D ST^TfS NI.^GISTRATE 1UDGG

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