IP Innovation LLC et al v. Google, Inc.
Filing
41
MOTION for Protective Order Joint Motion for Entry of Agreed Protective Order by Google, Inc.. (Attachments: # 1 Agreed Protective Order)(Beck, David)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION
$
IP INNOVATION L.L.C. AND TECHNOLOGY LICENSING CORPORATION.
$ $ $
Plaintiffs,
V.
$
I
$ $
CASE NO. 2:07CV-503-LED
GOOGLE INC.,
Defendant.
$ $ $ $
AGREED PROTECTIVE ORDER
To expedite the flow of discovery materials, to facilitate the prompt resolution of disputes
over confidentiality of discovery materials, to adequately protect information the parties
are
entitled to keep confidential, to ensure that only materials the parties are entitled to keep
confidential are subject to such treatment, and to ensure that the parties are permitted reasonably
necessary uses of such materials in preparation for and in the conduct of trial, pursuant to Fed. R.
Civ. P. 26(c), it is hereby ORDERED THAT:
T.
INFORMATION SUBJECT TO THIS ORDER
Discovery materials produced in this case may be labeled as one of three categories:
CONFIDENTIAL, CONFIDENTIAL OUTSIDE COT]NSEL ONLY, and RESTRICTED
CONFIDENTIAL-SOURCE CODE, as set forth in Items A-C below. All three of the identif,red
categories of information shall be identified collectively in this Order by the title "Protected
Information."
A. 1.
Information Designated as Confidential Information
For purposes of this Order, "CONFIDENTIAL INFORMATION" shall mean all
information or material produced for or disclosed to a receiving parfy that a producing party,
USIDOCS 6797165v1
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 to constitute confidential
technical, sales, marketing, financial, or other commercially sensitive information, whether
embodied in physical or electronic objects or documents, or the factual knowledge of persons,
and which has been so designated by the producing party. Any CONFIDENTIAL
INFORMATION obtained by any party from any person pursuant to discovery in this litigation
may be used only for purposes of this litigation.
2.
Any
document
INFORMATION
or including arry CONFIDENTIAL may be designated as such by the producing pW by marking it
or tangible thing
containing
at the time copies are furnished to the receiving party.
"CONFIDENTIAL" prior to or
3.
All CONFIDENTIAL INFORMATION not reduced to documentary, tangible, or physical
form or which cannot be conveniently designated as set forth in paragraph 2, shall be designated
by the producing party by informing the receivingpanty of the designation in writing.
4.
Any 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 INFORMATION and shall be subject to this Order.
Thereafter, the producing party shall have a reasonable time
to review and
designate the
appropriate documents as CONFIDENTIAL INFORMATION prior to furnishing copies to the receiving party.
5.
The following information is not GoNFIDENTIAL INFORMATION:
a. b.
c.
Published advertising materials;
Any information which is or, 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;
Any information that the receiving party can show was already known to it prior
to the disclosure;
a
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d.
Any information which the receiving party can show by written records
was
received by
it after the disclosure from a source who obtained the information lawfully
and under no obligation of confidentiality to the producing parry; and
e.
Any information which the receiving party can show was
independently
access to the
developed by
it after the time of disclosure by personnel who did not have
producing party's CONFIDENTIAL INFORMATION.
6.
Documents designated CONFIDENTIAL and information contained therein shall be
available only to:
a.
Outside litigation counsel of record and supporting personnel employed in the law
firm(s) of outside litigation counsel of record, such as attorneys, paralegals, assistants,
translators, secretaries, clerks, and staff;
b. Technical advisers and their necessary support personnel, subject to the provisions of paragraphs l4-I9 herein, and who have signed the form attached hereto as
Attachment A;
c.
Up to four (4) in-house counsel with responsibility for managing this litigation
and one officer level 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;
d. e.
The Court, its personnel and stenographic reporters (under seal or with other
suitable precautions determined by the Court); and
Translators retained
to translate in
connection with this action; stenographic
reporters and videographers retained to record and transcribe testimony
in
connection
with this action; 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; and persons involved in jury or trial consulting.
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B. 7.
Information Designated Confidential Outside Counset Only
The CONFIDENTIAL OUTSIDE COUNSEL ONLY designation
is reserved for
CONFIDENTIAL INFORMATION that constitutes proprietary marketing, flrnancial, sales, web
traffic, research and development, or technical datalinformation or commercially sensitive
competitive information, including, without limitation, confidential information obtained from a
nonparty 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. Documents marked CONFIDENTIAL
OUTSIDE ATTORNEYS' EYES ONLY or ATTORNEYS' EYES ONLY shall be treated as if
designated CONFIDENTIAL OUTSIDE COUNSEL
ONLY. In determining
whether
information should be designated as CONFIDENTIAL OUTSIDE COUNSEL ONLY, each party
agrees to use such designation only in good faith.
8.
Documents designated CONFIDENTIAL OUTSIDE COI-INSEL ONLY and information
contained therein shall be available only to:
a.
Outside litigation counsel of record and supporting personnel employed in the law
firm(s) of outside litigation counsel of record, such as attomeys, paralegals, assistant,
translators, secretaries, clerks, and staff;
b. of c. d.
Technical advisers and their necessary support personnel, subject to the provisions
paragraphs 14-19 herein, and who have signed the form attached hereto
as
Attachment A;
The Court, its personnel and stenographic reporters (under seal or with other
suitable precautions determined by the Court); and
Translators retained
to translate in connection with this action; stenographic
reporters and videographers retained to record and transcribe testimony in connection
with this action; graphics, translation, or design services retained by counsel for purposes
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of
preparing demonstrative
or other exhibits for
deposition, trial,
or other court
proceedings in the actions; and persons involved in jury or trial consulting.
C. 9.
Information Designated Restricted Confidential-Source Code
Documents or other things that are designated CONFIDENTIAL INFORMATION and
contain a parfy's source code may be designated "RESTRICTED CONFIDENTIAL
- SOURCE
CODE," if they comprise or include confidential, proprietary and/or trade secret source code. At
the producing parfy's discretion, the source code may be made available for review at a single
secure site for an opposing parfy. The parties shall meet and confer to determine the location
of
the secure site. The following conditions shall govern the production, review and use of source
code information.
10.
All
source code produced shall be produced as
it is used or kept in the ordinary course of
business.
All
source code produced shall be deemed designated as "RESTzuCTED
CONFIDENTIAL-SOURCE CODE."
All
such source code, and any other Protected
Information designated as "RESTRICTED CONFIDENTIAL-SOURCE CODE," shall be
subject to the following provisions:
a.
All
source code
will be made available by the producing party to the receiving
party's outside counsel and/or experts 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 unauthoúzed 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 install such tools or programs necessary to review and search the code
produced on the platform produced. The receiving parfy's outside counsel andlor experts
may request that other commercially available licensed software tools for viewing and
searching source code be installed on the secured computer. The receiving party must
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provide the producing party with the CD or DVD containing such software tool(s) at least
two days in advance of the inspection.
b.
The receiving party's outside counsel and/or expert shall be entitled to take notes
relating to the source code but may not copy the source code into the notes. 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.
c.
The producing party shall make available a laser printer with commercially
reasonable printing speeds
for on-site printing during inspection of the code.
The
receiving party may print portions of the source code only when reasonably necessary to
facilitate the receiving party's preparation of the case, including when reasonably
necessary to prepare any filing 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 testifring expert reports, consulting expert written
analyses and related drafts and correspondences. The receiving party shall print only such
portions as are reasonably necessary for the purposes for which any part of the source
code is printed at the
time. Upon printing any such portions of source code, the printed
pages shall be collected by the producing party. The producing party shall Bates number,
copy, and label "RESTRICTED CONFIDENTIAL-SOURCE CODE" any pages printed
by the receiving party.
If
the producing party objects that the printed portions are not
reasonably necessary to any case preparation activity, the producing party shall make such
objection known to the receiving party within two (2) business days. If after meeting and conferring the producing parry and the receiving party cannot resolve the objection, the producing party shall be entitled to seek a Court resolution of whether the printed source code
in question is not reasonably
necessary
to any case preparation activity. In
the
the
absence
of any objection, or upon resolution of any such dispute by the Court,
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producing parfy shall provide one copy set of such pages to the receiving party within two
(2) business days and shall retain one copy set. The printed pages shall constitute part of
the source code produced by the producing party in this action.
d.
A list of names of persons who will view the source code will
be provided to the
producing party
in conjunction with any written (including email) notice requesting
inspection. The receiving party shall maintain a daily log of the names of persons who
enter the locked room to view the source code and when they enter and depart. The
producing party shall be entitled to have a person observe all entrances and exits from the
source code viewing room, and to a copy of the log.
e.
Unless otherwise agreed
in
advance by the parties
in writing, following
each
inspection, the receiving party's outside counsel and/or experts shall remove all notes,
documents, laptops, and all other materials from the room that may contain work product
and/or attorney-client privileged information. The producing party shall not be
responsible for any items left in the room following each inspection session.
f.
Other than as provided
in Paragraph 10(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 equipment. The receiving party
will not transmit any
source code in any way from the producing party's facilities or the offices of its outside counsel ofrecord.
g.
The receiving party shall maintain and store any paper copies of the source code at
their offices in a manner that prevents duplication of or unauthorized access to the source
code, including, without limitation, storing the source code in a locked room or cabinet at
all times when it is not in use.
h.
The receiving party's outside counsel of record may make no more than seven
additional paper copies
of any portions of the source code printed pursuant to
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paragraph 10(c), not including copies attached to court filings, and shall maintain a log
of
all copies of the source code (received from a producing party) that
are delivered by the
receiving party to any qualified person under Paragraph 8 above. The log shall include
the names of the recipients and reviewers of copies and locations where the copies are stored. 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 with this order.
i.
The receiving party may include excerpts of source code in a pleading, exhibit,
expert report, discovery document, deposition transcript, other Court document, or any
drafts of these documents ("SOURCE CODE DOCUMENTS"). The receiving party
shall only include such excerpts as are reasonably necessary for the purposes for which
such part ofthe source code is used.
j.
To the extent portions of source code are quoted in a SOURCE CODE
DOCUMENT, either
(l) the entire document will be stamped
and treated
as
RESTRICTED CONFIDENTIAL-SOURCE CODE or (2) those pages containing quoted
source code
will be
separately bound, and stamped and treated as RESTRICTED
CONFIDENTIAL_SOURCE CODE.
k.
All
paper copies shall be securely destroyed
if they are no longer in use (e.g., 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 identi$ the exhibit by its production
numbers.
l.
Except as provided in this sub-paragraph 10(l), 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., the receiving parfy may not
scan the source code
to a PDF, or
photograph the code). The receiving party may create an electronic copy or image of
selected portions of the source code only when reasonably necessary to accomplish any -8-
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filing with the Court or to serve any pleadings or other papers on any other parly
(including expert reports). Images or copies of source code shall not be included in
correspondence between the parties (references
to production numbers shall be
used
instead) and shall be omitted from pleadings and other papers except to the extent permitted herein. The receiving party may create an electronic image
of a selected
portion of the source code only when the electronic file containing such image has been encrypted using commercially reasonable encryption software including password
protection. The communication andlor disclosure
of
electronic files containing any
portion of source code shall at all times be limited to individuals who are authorized to
see source code under the provisions of this Protective Order. The receiving party shall
maintain a log of all electronic images and paper copies of source code in its possession
or in the possession of its retained consultants, including the names of the recipients and
reviewers of any electronic or paper copies and the locations where the copies are stored.
Additionally, all electronic copies must be labeled
CONFIDENTIAL_SOURCE CODE. "
"RESTRICTED
m.
The receiving party's outside counsel may only disclose a copy of the source code
to individuals specified in Paragraph 8(a) through 8(d) above (e.g., source code may not
be disclosed to in-house counsel).
II. 11.
PROSECUTION BAR
Any person reviewing any of an opposing party's Confidential Materials, Confidential
as
Outside Counsel Only Materials, or Source Code (all of which shall also be referred to
"PROSECUTION BAR MATERIALS") shall not, for a period commencing upon receipt of such
information and ending one year following the conclusion of this case (including any appeals),
engage in any PROSECUTION ACTIVITY on behalf of a party asserting a patent in this case.
Furthermore, any person reviewing PROSECUTION BAR MATERIALS shall not, for a period commencing upon receipt of such information and ending one year following the conclusion of -9-
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this case (including any appeals), engage in any PROSECUTION ACTIVITY involving claims
on a method, apparatus, or system that: (i) facilitates the generation and creation of a thesaurus
for a corpus of document, (ii) facilitates the identification and retrieval of documents responsive
to a query
based on a thesaurus, and
(iii)
facilitates the presentation, manipulation and/or
movement of objects or images in a three-dimensional space in response to user inputs.
12.
The following documents and materials shall not be eligible for classification
as
PROSECUTION BAR MATERIALS: (i) documents and information related only to damages or
reasonable royalty rates;
(ii) publications, including patents and published patent applications;
systems or products that were publicly known, on sale, or in
(iii) materials regarding 3rd party
public use before June 16, 1994 for the subject matter described in paragraph 1l(i) and (ii), and August 2, 1990 for the subject matter described in paragraph
ll(iiÐ,
unless such materials are
designated as PROSECUTION BAR MATERIALS by a 3rd pafty; and (iv) information that is
publicly available.
13.
PROSECUTION ACTIVITY shall mean:
(1) prepare and/or prosecute 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; (2) preparc patent claim(s) on
behalf
of a patentee or assignee of
patentee's rights;
(3) participate in any reissue
or
reexamination proceedings on behalf of a patentee or assignee of patentee's rights; or (4) provide advice, counsel or suggestions regarding, or in any other way influencing, claim scope and/or
language, embodiment(s) for claim coverage, claim(s) for prosecution, or products or processes
for coverage by claim(s)on behalf of a patentee or assignee of patentee's rights. The
parties
expressly agree that the PROSECUTION BAR 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' law firm. It is expressly agreed that attorneys who work on this matter without reviewing PROSECUTION BAR MATERIAL shall not be restricted from
engaging in PROSECUTION ACTIVITY on other matters that fall within the PROSECUTION -10-
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BAR. Moreover, nothing in this paragraph shall prevent any attorney from sending Prior Art to
an attorney involved
submitted
in patent
prosecution
for purposes of ensuring that such Prior Art
is
to the U.S.
Patent and Trademark Office (or any similar agency
of a foreign
government) to assist a patent applicant in complying with its duty of candor. Prior Art shall
mean: (i) publications, including patents and published patent applications; and (ii) materials or
information regarding 3rd party systems or products that were publicly known, on sale, or in public use before June 16, 1,994 for the subject matter described inparagraph 11(i) and (ii), and
August 2, 1990 for the subject matter described in paragraph
designated as PROSECUTION BAR materials by a3tdparty.
ll(iii),
unless such materials are
III. t4.
DISCLOSURE OF TECHNICAL ADVISERS
Information designated
by the producing parfy under any category of
Protected
Information and such copies of this information as are reasonably necessa.ry for maintaining,
defending or evaluating this litigation may be furnished and disclosed to the receiving party's
technical advisers and their necessary support personnel. The term "technical adviser" shall
mean an independent, outside expert witness or consultant with whom counsel may deem it
necessary to consult and who complies with paragraph 15.
15.
No disclosure of Protected Information to a technical adviser or their necessary support
personnel shall occur until that person has signed the form attached hereto as Attachment A, and
a signed copy has been provided to the producing party; and to the extent there has been
objection under paragraph IT,that objection is resolved as discussed below.
an
t6.
A party desiring to disclose Protected Information to a technical adviser shall also give
prior written notice by email to the producing party, who shall have ten (10) business days after
such notice is given to object in
writing. The party desiring to disclose Protected Information to
n¿Ìlne,
a technical adviser must provide the following information for each technical adviser:
address, curriculum vitae, current employer, employment history for the past four (4) years, and a
listing of cases in which the witness has testified as an expert at trial or by deposition within the
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preceding four years.
No
Protected Information shall be disclosed
to such expert(s) or
consultant(s) until after the expiration of the foregoing notice period.
17.
A parfy objecting to disclosure of Protected Information to a technical adviser 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
Information to a technical adviser shall not be unreasonably withheld, and its objection must be
based on that party's good faith belief that disclosure of its Protected Information to the technical
adviser will result in specific business or economic harm to that parfy.
18. If
after consideration of the objection, the party desiring to disclose the Protected
Information to a technical adviser refuses to withdraw the technical adviser, that parry 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 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
*y
discovery or
briefing schedules. During the pendency of such dispute and until ruling on such motion,
Protected Information shall not be disclosed to the proposed technical adviser.
19.
The objecting party shall have the burden of showing to the Court "good cause" for
preventing the disclosure of its Protected Information to the technical adviser. This "good cause"
shall include a particularized showing that:
(l)
the Protected Information is
conf,rdential
commercial information; (2) disclosure of the Protected Information would result in a clearly
defined and serious injury to the objecting party's business; and (3) the proposed technical
advisor is in a position to allow the Protected Information to be disclosed to the objecting party's competitors.
W. 20.
CHALLENGESTOCONFIDENTIALITYDESIGNATIONS
as
The parties shall use reasonable care when designating documents or information
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Protected Information. Nothing in this Order shall prevent a receiving party from contending that
any documents or information designated as Protected Information have been improperly
designated. A receiving party may al any time request that the producing party cancel or modiff
the Protected Information designation with respect to any document or information contained
therein.
21.
A party shall not be obligated to challenge the propriety of a designation of any category
a
of Protected Information at the time of production, and a failure to do so shall not preclude
subsequent challenge thereto. Such a challenge shall be written, shall be served on counsel for
the producing party, and shall particularly identiff the documents or information that the
receiving party contends should be differently designated. The parties shall use their best efforts
to resolve promptly and informally such disputes. If an agreement cannot be reached,
the
receiving parry shall request that the Court cancel or modiff a designation. The burden of
demonstrating the confidential nature of any information shall at all times be and remain on the designating party.
22.
Until a determination by the Court, the information in issue shall be treated as having
been properly designated and subject to the terms of this Order.
V.
LIMITATIONS ON THE USE OF'PROTECTED INFORMATION
shall be held in confidence by each person to whom
23. All Protected Information
it
is
disclosed, shall be used only for purposes of this litigation, shall not be used for any business
pu{pose, and shall not be disclosed to any person who is not entitled to receive such information as herein provided.
All
produced Protected Information shall be carefully maintained so as to
preclude access by persons who are not entitled to receive such information.
24.
Except as may be otherwise ordered by the Court, any person may be examined as
a
witness at depositions and trial and may testiff concerning all Protected Information of which
such person has prior knowledge. V/ithout in any way limiting the generality of the foregoing:
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a.
A
present director, officer, and/or employee
of a producing party may
and
be
examined and may be asked
to testiff (subject to and without waiving any
all
objections) concerning all Protected Information which has been produced by that party;
b.
A former director, officer, agent andlor
employee
of a producing party may be
interviewed, examined and may testifu concerning all Protected Information of which he
or she has prior knowledge, including any Protected Information that refers to matters of which the witness has personal knowledge, which has been produced by that parfy and
which pertains to the period or periods of his or her employment; and
c.
Non-parties may be examined or testiff concerning any document containing
Protected Information
of a producing party which
appears on
its face or from other
documents or testimony to have been received from or communicated to the non-party as a result of any contact or relationship with the producing parly or a representative of the
producing party. Any person other than 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 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 Attachment A hereto, that he or she
will comply with
the terms of this Order and maintain the conf,rdentiality of Protected
Information 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 Information.
25. All transcripts
of depositions, exhibits, answers to interrogatories, pleadings, briefs, and
other documents submitted to the Court which have been designated as Protected Information, or
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which contain information so designated, shall be filed under seal in a manner prescribed by the
Court for such filings.
26.
Outside attorneys of record for the parties are hereby authorized to be the persons who
may retrieve confidential exhibits and/or other confidential matters filed 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, to outside counsel of record, or as otherwise provided for hereunder.
Notwithstanding
the foregoing and with regard to material of
Section
designated
as
Restricted
Confidential-Source Code, the provisions
provisions differ from this paragraph.
C
are controlling
to the extent those
27.
Protected Information shall not be copied or otherwise produced by a receiving party,
except for transmission to qualified recipients, without the written permission of the producing
party, or, in the alternative, by further order of the Court. Nothing herein shall, however, restrict
a
qualified recipient from making working copies, abstracts, digests and analyses of
CONFIDENTIAL and CONFIDENTIAL OUTSIDE COUNSEL ONLY information for use in
connection with this litigation 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 CONFIDENTIAL and
CONFIDENTIAL OUTSIDE COUNSEL ONLY information into machine readable form for
incorporation into
a
data retrieval system used
in connection with this action, provided
that
access to that Protected Information, in whatever form stored or reproduced, shall be limited to qualif,red recipients.
28. At the request of any party, the original
and all copies of any deposition transcript, in
whole or in part, shall be marked "CONFIDENTIAL" by the reporter. This request may be made
orally during the deposition or in writing within fifteen (15) days of receipt of the final certified
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transcript. Deposition transcripts shall be treated as CONFIDENTIAL OUTSIDE COLINSEL ONLY until the expiration of the time to make a confidentiality designation. Any portions
designated shall thereafter be treated in accordance with the terms of this Order.
so
VI. 29.
NONPARTY USE OF THIS PROTECTIVE ORDER
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.
30. A nonparty's use of this Protective Order to protect its Protected VII. 31.
NO WAIVER OF PRIVILEGE
Information does not
entitle that nonparty access to the Protected Information produced by any party in this case.
Nothing in this Protective Order shall require production of information that a party
contends is protected from disclosure by the attorney-client privilege, the work 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 immunity is
nevertheless inadvertently or unintentionally produced, such production shall in no way prejudice
or otherwise constitute a waiver or estoppel as to any such privilege, doctrine, right or immunity.
Any parfy that inadvertently produces materials protected by the attorney-client privilege, work
product privilege, or other privilege, doctrine, right, or immunity may obtain the return of those materials by promptly notifying the recipient(s) and subsequently providing a privilege log for
the inadvertently produced materials. The recipient(s) shall gather and return all copies of the privileged 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 parly. Notwithstanding this provision, outside litigation counsel of record are not
required
to delete information that may reside on their
respective firm's electronic back-up
systems that are over-written in the normal course of business.
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VIII. 32. 33.
MISCELLANEOUS PROVISIONS
Any of the notice requirements herein may be waived, in whole or in part, but only in
writing signed by the attorney-in-charge for the party against whom such waiver will be effective. 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
Information at the time of production shall not be deemed a waiver in whole or in part of a claim
for confidential treatment. With respect to documents, the producing party shall immediately
notiff the other parties of the error in writing and provide replacement pages
bearing the
appropriate confidentiality 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
party responsible for the disclosure shall immediately
notit/
opposing counsel
of all of
the
pertinent facts, and make every effort to fi.lrther prevent unauthorized disclosure including, retrieving all copies of the Protected Information from the recipient(s) thereof, and securing the
agreement
of the recipients not to fuither disseminate the Protected Information in any form.
Compliance with the foregoing shall not prevent the producing party from seeking fuither relief from the Court.
34.
Within sixty (60) days after the entry of a final non-appealable judgment or order, or the
complete settlement of all claims asserted against all parties in this action, each party shall, at the
option of the producing pary, either retum or destroy all physical objects and documents which
embody Protected Information
it
has received, and shall destroy in whatever form stored or
reproduced, all physical objects and documents, including but not limited to, correspondence,
memoranda, notes and other work product materials, which contain or refer to any category of
Protected Information.
All
Protected Information
not embodied in physical objects and
documents shall remain subject to this Order. In the event that a party is dismissed before the
entry of a f,rnal non-appealable judgment or order, this same procedure shall apply to any
Protected Information received from or produced to the dismissed par|y. Notwithstanding this
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USIDOCS ó797165v1
provision, outside litigation counsel of record are not required to delete information that may
reside on their respective firm's electronic back-up systems that are over-written in the normal course of business. Notwithstanding the foregoing, outside counsel shall be entitled to maintain
copies of all 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 work product which refers or is related to any
CONFIDENTIAL and CONFIDENTIAL OUTSIDE COI-INSEL ONLY information for archival
purposes
only. If a party opts to destroy CONFIDENTIAL or CONFIDENTIAL OUTSIDE
COUNSEL ONLY information, the party must provide a Certificate of Destruction to the
producing parfy.
35.
If at any time documents containing
Protected Information are subpoenaed by any court,
arbitral, administrative or legislative body, the person to whom the subpoena or other request is directed shall immediately give written notice thereof to every party who has 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 disclosure
of such documents within ten (10) business days of the date written notice is given, the party to
whom the referenced subpoena is directed may produce such documents in response thereto.
36.
Testiffing experts shall not be subject to discovery on any draft of their reports in this
case and such draft reports, notes or outlines for draft reports are also exempt from production and discovery.
37.
Documents produced in this case with a designation of "HIGHLY CONFIDENTIAL"
shall be treated as
if
such documents were designated as CONFIDENTIAL OUTSIDE
COUNSEL ONLY under this Protective Order.
38.
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
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USIDOCS 6't97l65vl
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
release would otherwise violate the terms herein.
if the conduct
subject to the
39.
The United States District Court for the Eastem District of Texas, Marshall Division, is
responsible
for the interpretation and enforcement of this Agreed Protective Order. After
termination of this 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 shall have continuing jurisdiction over the parties and recipients
of the Protected Information for enforcement of the provision of this Agreed Protective Order
following termination of this litigation. All disputes concerning Protected Information produced under the protection of this Agreed Protective Order shall be resolved by the United States District Court for the Eastern District of Texas, Marshall Division'
SIGNED this
_
day
of_,
2008.
T]NITED STATES DISTRICT COURT ruDGE
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USIDOCS 6797165v1
APPROVED:
By: /s/ Douglas M. Hall T. John Ward Ward & Smith I 11 W. Tyler St. Longview, Texas 75601
Telephone: (930) 7 57 -6400 Facsimile: (930) 7 57 -2323 Raymond P. Niro Joseph N. Hosteny Arthur A. Gasey Paul C. Gibbons Douglas M. Hall David J. Mahalek NIRO, SCAVONE, HALLER & NIRO 181 West Madison, Suite 4600 Chicago, Illinois 60602 Telephone : (3 12) 236-07 33 Facsimile : (3 12) 23 6-3 137
By: /s/ David J. Beck David J. Beck Texas Bar No. 00000070 dbeck@brsfirm.com Michael E. Richardson Texas Bar No. 24002838 mrichardson@brsfirm. com BECK, RepnpN & Spcnesr, L.L.P. One Houston Center l22I McKinney St., Suite 4500 Houston, Texas 77010 (713) 9sr-3700 (713) 95t-3720 (Fax)
Mark G. Matuschak (admittedpro hac vice) 'WtLN¿eR CurLBn PlcrBRn lc Halp nup Donn LLP
60 State Street Boston, MA 02109 (6t7) s26-6000 (617) s26-s000 (Fax)
John M. Hintz (admittedpro hac vice) Victor F. Souto (admittedpro hac vice) Ross E. Firsenbaum (admittedpro hac vice) 'WnuBR Curr-sR PIcTBRINc
CouNsnl FoR PLAINTIFFS AND CoUNTERCr-nru DnTBNO¿,NTS IP INNOVATION L.L.C.
AND TECHNOLOGY LTCNNSNC
Hele exp Donn LLP
399 Park Avenue New York, NY 10022 (212) 230-8800 (212)230-8888 (Fax)
CoRpon¡rIo¡1.
Elizabeth I. Rogers (admittedpro hac vice) W lr-rrreR Cuu.En Plcr¡RrNc Heln AND DoRR LLP 1117 California Avenue Palo Alto, CA94304 (6s0) 8s8-6042 (650) 8s8-6100 (FAX)
CouNsnl ron DopnxDANT ANn CouNrBnCl¡¡nr Pr,lrNrmp Goocln INc.
-20-
USIDOCS 6'197l65vl
ATTACHMENT A TO THE AGREED PROTECTIVE ORDER
CONFIDENTIALITY AGREEMENT
I reside at
l.
2.
3.
My present employer
rs rs
My present occupation or job description
I have read the Agreed Protective Order dated
, 2008, and have been
engaged as
behalf of of litigation styled IP Innovation L.L.C. et al. v. Googlelnc.
in the preparation and conduct
4.
I am fully familiar with and agree to comply with and be bound by the provisions of said
Order.
I
understand that
I am to
retain
all
copies
of any documents designated
as
CONFIDENTIAL, CONFIDENTIAL OUTSIDE COIJNSEL ONLY and/or RESTRICTED
CONFIDENTIAL-SOURCE CODE information in a secure manner, and that all copies are to
remain in my personal custody until I have completed my assigned duties, whereupon the copies
and any writings prepared by me containing any CONFIDENTIAL, CONFIDENTIAL OUTSIDE
COUNSEL ONLY and/or RESTRICTED CONFIDENTIAL-SOURCE CODE information are
to be returned to counsel who provided me with such material.
5.
I will not divulge to persons other than those specifically
authorized by said Order, and
will not copy or use except
solely for the purpose of this action, any information obtained
pursuant to said Order, except as provided in said Order. I also agree to
notiff any stenographic
or clerical personnel who are required to assist me of the terms of said Order.
6.
In accordance with
paragraph
of the Agreed Protective Order (if applicable), I have
attached my resume, curriculum vitae
or other information to this executed Confrdentiality
Agreement sufficient to identifr my current employer and employment history for the past four
(4) years, and the cases in which I have testified as an expert at frial or by deposition within the
preceding four (4) years.
-2t-
USIDOCS 67971ó5vl
7.
I
state under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct.
Executed on
,20
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USIDOCS 6797165v1
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