Rockstar Consortium US LP et al v. Google Inc

Filing 93

Additional Attachments to Main Document: 92 MOTION for Leave to File A Supplemental Brief In Response To Googles Motion To Transfer In Light Of Newly-Acquired Evidence.. (Attachments: # 1 Exhibit 31, # 2 Exhibit 32, # 3 Exhibit 33, # 4 Exhibit 34, # 5 Exhibit 35, # 6 Exhibit 36, # 7 Exhibit 37, # 8 Exhibit 38, # 9 Exhibit 39, # 10 Exhibit 40, # 11 Exhibit 41, # 12 Exhibit 42, # 13 Exhibit 43, # 14 Exhibit 44, # 15 Exhibit 45, # 16 Exhibit 46, # 17 Exhibit 47, # 18 Exhibit 48, # 19 Exhibit 49, # 20 Exhibit 50, # 21 Exhibit 51, # 22 Exhibit 52, # 23 Exhibit 53, # 24 Exhibit 54, # 25 Exhibit 55, # 26 Exhibit 56, # 27 Exhibit 57, # 28 Exhibit 58, # 29 Exhibit 59, # 30 Exhibit 60, # 31 Exhibit 61, # 32 Exhibit 62, # 33 Exhibit 63, # 34 Exhibit 64, # 35 Exhibit 65, # 36 Exhibit 66)(Bonn, Amanda)

Exhibit 65

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
ROCKSTAR CONSORTIUM US LP
AND NETSTAR TECHNOLOGIES LLC,
Plaintiffs,
v.
GOOGLE INC.
Defendant.

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Civil Action No. 13-cv-00893-RG

PLEASE TAKE NOTICE that, pursuant to Rule 45 of the Federal Rules of Civil
Procedure, Defendant Google Inc. will serve a Subpoena to Produce Documents, Information, or
Objects or to Permit Inspection of Premises (“the Subpoena”) on Turner Broadcasting System,
Inc. The specific categories of the documents which he should produce are listed in Attachment
A to the Subpoena. A true and correct copy of the Subpoena is attached to this notice.

Dated: June 20, 2014

Respectfully submitted,

s/ Sam Stake
James Mark Mann
[e-mail]
Andy Tindel
[e-mail]
Gregory Blake Thompson
[e-mail]
Mann Tindel & Thompson
300 W. Main
Henderson, TX 75652
903-657-8540
Charles K. Verhoeven
[e-mail]
David A. Perlson
[e-mail]
Sean Pak
[e-mail]
Quinn Emanuel Urquhart & Sullivan
50 California Street, 22nd Floor
San Francisco, CA 94111
415-875-6600
Robert Wilson
[e-mail]
Quinn Emanuel Urquhart & Sullivan
51 Madison Ave., 22nd Floor
New York, NY 10010
212-849-7145
ATTORNEYS FOR DEFENDANT
GOOGLE INC.

CERTIFICATE OF SERVICE
I hereby certify that all counsel of record are being served via electronic mail with a copy
of this document on June 20, 2014.

s/ Sam Stake
Sam Stake
[e-mail]
Quinn Emanuel Urquhart & Sullivan
50 California Street, 22nd Floor
San Francisco, CA 94111
415-875-6600

2

AO 88B (Rev. 02/14) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action

UNITED STATES DISTRICT COURT
for the

Eastern District of __________
__________ District of Texas
Rockstar Consortium US LP & NetStar Technologies LLC
Plaintiff

v.
Google Inc.
Defendant

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)
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Civil Action No. 13-cv-00893-RG

SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS
OR TO PERMIT INSPECTION OF PREMISES IN A CIVIL ACTION
Turner Broadcasting System, Inc.
100 International Boulevard, 1 CNN Center NW, Atlanta, GA 30303

To:

(Name of person to whom this subpoena is directed)

✔ Production: YOU ARE COMMANDED to produce at the time, date, and place set forth below the following
u
documents, electronically stored information, or objects, and to permit inspection, copying, testing, or sampling of the
material: Attachment A

Place: Chris Stanton

Date and Time:

1327 Arkwright Place
Atlanta, GA 30317

07/18/2014 9:00 am

u Inspection of Premises: YOU ARE COMMANDED to permit entry onto the designated premises, land, or
other property possessed or controlled by you at the time, date, and location set forth below, so that the requesting party
may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.
Place:

Date and Time:

The following provisions of Fed. R. Civ. P. 45 are attached – Rule 45(c), relating to the place of compliance;
Rule 45(d), relating to your protection as a person subject to a subpoena; and Rule 45(e) and (g), relating to your duty to
respond to this subpoena and the potential consequences of not doing so.
Date:

06/20/2014

CLERK OF COURT
OR
Signature of Clerk or Deputy Clerk

Attorney’s signature

The name, address, e-mail address, and telephone number of the attorney representing (name of party)
, who issues or requests this subpoena, are:
Google Inc.
Lance Yang, Quinn Emanuel Urquhart & Sullivan, LLP, 865 S. Figueroa St., 10th Floor, Los Angeles, California 90017, 213-443-3360
[e-mail]

Notice to the person who issues or requests this subpoena
If this subpoena commands the production of documents, electronically stored information, or tangible things or the
inspection of premises before trial, a notice and a copy of the subpoena must be served on each party in this case before
it is served on the person to whom it is directed. Fed. R. Civ. P. 45(a)(4).

AO 88B (Rev. 02/14) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action (Page 2)

Civil Action No. 13-cv-00893-RG
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 45.)
I received this subpoena for (name of individual and title, if any)
on (date)

.
u I served the subpoena by delivering a copy to the named person as follows:
on (date)

; or

u I returned the subpoena unexecuted because:
.
Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have also
tendered to the witness the fees for one day’s attendance, and the mileage allowed by law, in the amount of
$
My fees are $

.
for travel and $

for services, for a total of $

I declare under penalty of perjury that this information is true.

Date:
Server’s signature

Printed name and title

Server’s address

Additional information regarding attempted service, etc.:

0.00

.

AO 88B (Rev. 02/14) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action(Page 3)

Federal Rule of Civil Procedure 45 (c), (d), (e), and (g) (Effective 12/1/13)
(c) Place of Compliance.
(1) For a Trial, Hearing, or Deposition. A subpoena may command a
person to attend a trial, hearing, or deposition only as follows:
(A) within 100 miles of where the person resides, is employed, or
regularly transacts business in person; or
(B) within the state where the person resides, is employed, or regularly
transacts business in person, if the person
(i) is a party or a party’s officer; or
(ii) is commanded to attend a trial and would not incur substantial
expense.

(ii) disclosing an unretained expert’s opinion or information that does
not describe specific occurrences in dispute and results from the expert’s
study that was not requested by a party.
(C) Specifying Conditions as an Alternative. In the circumstances
described in Rule 45(d)(3)(B), the court may, instead of quashing or
modifying a subpoena, order appearance or production under specified
conditions if the serving party:
(i) shows a substantial need for the testimony or material that cannot be
otherwise met without undue hardship; and
(ii) ensures that the subpoenaed person will be reasonably compensated.
(e) Duties in Responding to a Subpoena.

(2) For Other Discovery. A subpoena may command:
(A) production of documents, electronically stored information, or
tangible things at a place within 100 miles of where the person resides, is
employed, or regularly transacts business in person; and
(B) inspection of premises at the premises to be inspected.
(d) Protecting a Person Subject to a Subpoena; Enforcement.
(1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney
responsible for issuing and serving a subpoena must take reasonable steps
to avoid imposing undue burden or expense on a person subject to the
subpoena. The court for the district where compliance is required must
enforce this duty and impose an appropriate sanction—which may include
lost earnings and reasonable attorney’s fees—on a party or attorney who
fails to comply.
(2) Command to Produce Materials or Permit Inspection.
(A) Appearance Not Required. A person commanded to produce
documents, electronically stored information, or tangible things, or to
permit the inspection of premises, need not appear in person at the place of
production or inspection unless also commanded to appear for a deposition,
hearing, or trial.
(B) Objections. A person commanded to produce documents or tangible
things or to permit inspection may serve on the party or attorney designated
in the subpoena a written objection to inspecting, copying, testing, or
sampling any or all of the materials or to inspecting the premises—or to
producing electronically stored information in the form or forms requested.
The objection must be served before the earlier of the time specified for
compliance or 14 days after the subpoena is served. If an objection is made,
the following rules apply:
(i) At any time, on notice to the commanded person, the serving party
may move the court for the district where compliance is required for an
order compelling production or inspection.
(ii) These acts may be required only as directed in the order, and the
order must protect a person who is neither a party nor a party’s officer from
significant expense resulting from compliance.
(3) Quashing or Modifying a Subpoena.
(A) When Required. On timely motion, the court for the district where
compliance is required must quash or modify a subpoena that:
(i) fails to allow a reasonable time to comply;
(ii) requires a person to comply beyond the geographical limits
specified in Rule 45(c);
(iii) requires disclosure of privileged or other protected matter, if no
exception or waiver applies; or
(iv) subjects a person to undue burden.
(B) When Permitted. To protect a person subject to or affected by a
subpoena, the court for the district where compliance is required may, on
motion, quash or modify the subpoena if it requires:
(i) disclosing a trade secret or other confidential research,
development, or commercial information; or

(1) Producing Documents or Electronically Stored Information. These
procedures apply to producing documents or electronically stored
information:
(A) Documents. A person responding to a subpoena to produce documents
must produce them as they are kept in the ordinary course of business or
must organize and label them to correspond to the categories in the demand.
(B) Form for Producing Electronically Stored Information Not Specified.
If a subpoena does not specify a form for producing electronically stored
information, the person responding must produce it in a form or forms in
which it is ordinarily maintained or in a reasonably usable form or forms.
(C) Electronically Stored Information Produced in Only One Form. The
person responding need not produce the same electronically stored
information in more than one form.
(D) Inaccessible Electronically Stored Information. The person
responding need not provide discovery of electronically stored information
from sources that the person identifies as not reasonably accessible because
of undue burden or cost. On motion to compel discovery or for a protective
order, the person responding must show that the information is not
reasonably accessible because of undue burden or cost. If that showing is
made, the court may nonetheless order discovery from such sources if the
requesting party shows good cause, considering the limitations of Rule
26(b)(2)(C). The court may specify conditions for the discovery.
(2) Claiming Privilege or Protection.
(A) Information Withheld. A person withholding subpoenaed information
under a claim that it is privileged or subject to protection as trial-preparation
material must:
(i) expressly make the claim; and
(ii) describe the nature of the withheld documents, communications, or
tangible things in a manner that, without revealing information itself
privileged or protected, will enable the parties to assess the claim.
(B) Information Produced. If information produced in response to a
subpoena is subject to a claim of privilege or of protection as
trial-preparation material, the person making the claim may notify any party
that received the information of the claim and the basis for it. After being
notified, a party must promptly return, sequester, or destroy the specified
information and any copies it has; must not use or disclose the information
until the claim is resolved; must take reasonable steps to retrieve the
information if the party disclosed it before being notified; and may promptly
present the information under seal to the court for the district where
compliance is required for a determination of the claim. The person who
produced the information must preserve the information until the claim is
resolved.
(g) Contempt.
The court for the district where compliance is required—and also, after a
motion is transferred, the issuing court—may hold in contempt a person
who, having been served, fails without adequate excuse to obey the
subpoena or an order related to it.

For access to subpoena materials, see Fed. R. Civ. P. 45(a) Committee Note (2013).

ATTACHMENT A
DEFINITIONS
1.

“TBS” “YOU,” and “YOUR,” means Turner Broadcasting System, Inc., and its

officers, directors, current and former employees, counsel, agents, consultants, representatives,
and any other persons acting on behalf of any of the foregoing, and all of Turner Broadcasting
System, Inc.’s affiliates, parents, divisions, joint ventures, licensees, franchisees, assigns,
predecessors and successors in interest, and any other legal entities, whether foreign or domestic,
that are owned or controlled by Turner Broadcasting System, Inc., and all predecessors and
successors in interest to such entities.
2.

“TBS WEBSITE” means any SOURCE CODE or EXECUTABLE SOFTWARE

related to any website owned by TBS, including the website that was made available at
www.turner.com, prior to July 8, 1999.
3.

“ADAPT/X” means any SOURCE CODE, EXECUTABLE SOFTWARE, or

services offered by Bellcore related to or marketed as Adapt/X Advertiser prior to July 8, 1999,
as referenced in, by way of example only, Exhibit 2.
4.

“NETGRAVITY” means the any SOURCE CODE, EXECUTABLE

SOFTWARE, or services offered by NetGravity, Inc., previously known as Netvertiser, Inc.
prior to July 8, 1999, as referenced in, by way of example only, Exhibit 3.
5.

“PATENTS-IN-SUIT” refers to U.S. Patent Nos. 6,098,065; 7,236,969,

7,469,245; 7,672,970; 7,895,183; 7,895,178; and 7,933,883, individually and collectively,
including all underlying patent applications, all continuations, continuations-in-part, divisionals,
and reissues.
6.

“NORTEL” means Nortel Networks Corporation and its officers, directors,

current and former employees, counsel, agents, consultants, representatives, and any other
persons acting on behalf of any of the foregoing, and Nortel Networks Corporation’s affiliates,
parents, divisions, joint ventures, licensees, franchisees, assigns, predecessors and successors in
interest, and any other legal entities, whether foreign or domestic, that are owned or controlled
by Nortel Networks Corporation, and all predecessors and successors in interest to such entities.
7.

“ROCKSTAR” means Rockstar Consortium Inc. and their officers, directors,

current and former employees, counsel, agents, consultants, representatives, and any other
persons acting on behalf of any of the foregoing, and Rockstar Consortium Inc.’s affiliates,
parents, divisions, joint ventures, licensees, franchisees, assigns, predecessors and successors in
interest, and any other legal entities, whether foreign or domestic, that are owned or controlled
by Rockstar Consortium Inc., including Rockstar Consortium US LP, Rockstar Consortium LLC,
Rockstar Bidco, or NetStar Technologies LLC, and all predecessors and successors in interest to
such entities.
8.

“ROCKSTAR SHAREHOLDER” means any shareholder in ROCKSTAR and

includes, but is not limited to, Apple Inc., Microsoft Corporation, Sony Corporation, Ericsson,
and Blackberry Ltd.
9.

“DOCUMENT” includes, without limitation, all written, graphic or otherwise

recorded material, including without limitation, microfilms or other film records or impressions,
electronically stored information regardless of the form of storage medium, tape recordings or
computer cards, floppy disks or printouts, any and all papers, photographs, films, recordings,
memoranda, books, records, accounts, communications, letters, telegrams, correspondence, notes
of meetings, notes of conversations, notes of telephone calls, inter-office memoranda or written
communications of any nature, recordings of conversations either in writings or upon any

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mechanical or electrical recording devices, including email, notes, papers, reports, analyses,
invoices, canceled checks or check stubs, receipts, minutes of meetings, time sheets, diaries, desk
calendars, ledgers, schedules, licenses, financial statements, telephone bills, logs, and any
differing versions of any of the foregoing, whether so denominated, formal, informal or
otherwise, as well as copies of the foregoing which differ in any way, including by the addition
of handwritten notations or other written or printed matter of any nature, from the original. The
foregoing specifically includes information stored in a computer database and capable of being
generated in documentary form, such as electronic mail.
10.

“SOURCE CODE” includes source code, hardware code, machine code, assembly

code, or code written in any programming language, and code that can be compiled or acted
upon by a processor, any listings or printouts thereof, and any release notes describing the
features or modifications of such code.
11.

“EXECUTABLE SOFTWARE” means computer files containing encoded

instructions capable of being executed by a processing unit (e.g. central processing unit,
microcontroller), and any release notes describing the features or modifications of such files.
The term shall include, without limitation, firmware and executable binary files.
12.

“COMMUNICATION” means, without limitation, any transmission, conveyance

or exchange of a word, statement, fact, thing, idea, DOCUMENT, instruction, information,
demand or question by any medium, whether by written, oral or other means, including but not
limited to, electronic communications and electronic mail.
13.

“PERSON” refers to any individual, corporation, proprietorship, association, joint

venture, company, partnership or other business or legal entity, including governmental bodies
and agencies.

3

14.

“REFLECT,” “REFLECTING,” “RELATE TO,” “REFER TO,” “RELATING

TO,” and “REFERRING TO” mean relating to referring to, concerning, mentioning, reflecting,
pertaining to, evidencing, involving, describing, discussing, commenting on, embodying,
responding to, supporting, contradicting, or constituting (in whole or in part), as the context
makes appropriate.
15.

“Include” and “including” shall mean including without limitation.

16.

Use of the singular also includes the plural and vice-versa.

17.

The words “or” and “and” shall be read in the conjunctive and in the disjunctive

wherever they appear, and neither of these words shall be interpreted to limit the scope of these
Interrogatories.
18.

The use of a verb in any tense shall be construed as the use of the verb in all other

tenses.

4

INSTRUCTIONS
The following instructions shall apply to each of the Document Requests herein:
1.

This subpoena seeks DOCUMENTS, SOURCE CODE, EXECUTABLE

SOFTWARE, or things in existence as of the date of service hereof and to the full extent
permitted by the Federal Rules of Civil Procedure.
2.

This subpoena shall apply to all DOCUMENTS, SOURCE CODE,

EXECUTABLE SOFTWARE, or things in your possession, custody or control as of the date of
service hereof or coming into your possession, custody, or control before the date of the
production.
3.

If any portion of a DOCUMENTS, SOURCE CODE, EXECUTABLE

SOFTWARE, or things is responsive to a request, the entire DOCUMENTS, SOURCE CODE,
EXECUTABLE SOFTWARE, or things shall be produced, redacting only privileged material if
any.
4.

YOU are to produce the original and each non-identical copy of each

DOCUMENTS, SOURCE CODE, EXECUTABLE SOFTWARE, or things requested herein that
is in YOUR possession, custody or control.
5.

DOCUMENTS produced pursuant to these requests shall be produced in the

original files and shall not be shuffled or otherwise rearranged. DOCUMENTS which were
stapled, clipped, or otherwise fastened together shall be produced in that form.
6.

Things produced pursuant to these requests shall be produced in their present

form and shall not be changed or modified in any way.
7.

In the event that any DOCUMENTS, SOURCE CODE, EXECUTABLE

SOFTWARE, or things called for by these requests or subsequent requests is to be withheld on

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the basis of a claim of privilege or immunity from discovery, that DOCUMENTS, SOURCE
CODE, EXECUTABLE SOFTWARE, or things is to be identified by stating:
(a)

the author(s), addressee(s) and any indicated or blind copyee(s);

(b)

the DOCUMENTS, SOURCE CODE, EXECUTABLE SOFTWARE, or
things’ date, number of pages and attachments or appendices;

(c)

the subject matter(s) of the document;

(d)

the nature of the privilege or immunity asserted; and

(e)

any additional facts upon which you would base your claim of privilege or
immunity.

8.

In the event that any DOCUMENTS, SOURCE CODE, EXECUTABLE

SOFTWARE, or things called for by these requests or subsequent requests has been destroyed or
discarded, that DOCUMENT or thing is to be identified by stating:
(a)

the author(s), addressee(s) and any indicated or blind copyee(s);

(f)

the DOCUMENTS, SOURCE CODE, EXECUTABLE SOFTWARE, or
things’ date, number of pages and attachments or appendices;

(g)

the DOCUMENTS, SOURCE CODE, EXECUTABLE SOFTWARE, or
things’ subject matter;

(h)

the date of destruction or discard, manner of destruction or discard, and
reason for destruction or discard;

(i)

the PERSONS who were authorized to carry out such destruction or
discard; and

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(j)

whether any copies of the DOCUMENTS, SOURCE CODE,
EXECUTABLE SOFTWARE, or things presently exist and, if so, the
name of the custodian of each copy.

9.

If any of the DOCUMENTS, SOURCE CODE, EXECUTABLE SOFTWARE,

or things are considered “confidential” such DOCUMENTS, SOURCE CODE,
EXECUTABLE SOFTWARE, or things should be produced subject to the terms and
provisions of the protective order entered in this case, attached as Exhibit 1.
10.

If no DOCUMENTS, SOURCE CODE, EXECUTABLE SOFTWARE, or things

are responsive to a particular request, you are to state that no responsive DOCUMENTS,
SOURCE CODE, EXECUTABLE SOFTWARE, or things exist.
11.

These Requests shall be deemed continuing so as to require further and

supplemental production in accordance with the Federal Rules of Civil Procedure.

7

DOCUMENTS TO BE PRODUCED
REQUEST FOR PRODUCTION NO. 1:
All DOCUMENTS, SOURCE CODE, EXECUTABLE SOFTWARE, or things,
including presentations, instructions, technical plans, diagrams, workbooks, manuals, published
articles, publications, and user guides, relating to any and all versions of TBS WEBSITE that
were created, licensed, made available or sold in the U.S. prior to July 8, 1999.
REQUEST FOR PRODUCTION NO. 2:
All DOCUMENTS, SOURCE CODE, EXECUTABLE SOFTWARE, or things,
including presentations, instructions, technical plans, diagrams, workbooks, manuals, published
articles, publications, and user guides, relating to any and all versions of ADAPT/X that were
created, licensed, made available or sold in the U.S. prior to July 8, 1999.
REQUEST FOR PRODUCTION NO. 3:
All DOCUMENTS, SOURCE CODE, EXECUTABLE SOFTWARE, or things,
including presentations, instructions, technical plans, diagrams, workbooks, manuals, published
articles, publications, and user guides, relating to any and all versions of NETGRAVITY that
were created, licensed, made available or sold in the U.S. prior to July 8, 1999.
REQUEST FOR PRODUCTION NO. 4:
DOCUMENTS sufficient to identify, by build name or number, any and all versions of
TBS WEBSITE that YOU manufactured, sold, or otherwise made available in the U.S. prior to
July 8, 1999.
REQUEST FOR PRODUCTION NO. 5:
DOCUMENTS sufficient to show YOUR marketing, advertising, or promotional efforts
related to TBS WEBSITE prior to July 8, 1999.

8

REQUEST FOR PRODUCTION NO. 6:
DOCUMENTS sufficient to show the time period during which each version of TBS
WEBSITE was made available to the public prior to July 8, 1999.
REQUEST FOR PRODUCTION NO. 7:
DOCUMENTS sufficient to identify any persons knowledgeable about the creation,
design, development, and operation of TBS WEBSITE sold, licensed, or made available prior to
July 8, 1999.
REQUEST FOR PRODUCTION NO. 8:
DOCUMENTS sufficient to identify any persons knowledgeable about the creation,
design, development, and operation of ADAPT/X sold, licensed, or made available prior to July
8, 1999.
REQUEST FOR PRODUCTION NO. 9:
DOCUMENTS sufficient to identify any persons knowledgeable about the creation,
design, development, and operation of NETGRAVITY sold, licensed, or made available prior to
July 8, 1999.
REQUEST FOR PRODUCTION NO. 10:
All DOCUMENTS, SOURCE CODE, EXECUTABLE SOFTWARE, or things,
including presentations, instructions, technical plans, diagrams, workbooks, manuals, published
articles, publications, and user guides, relating to the use or incorporation of ADAPT/X with
TBS WEBSITE prior to July 8, 1999, including beta testing, as referenced in, by way of example
only, Exhibit 2.

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REQUEST FOR PRODUCTION NO. 11:
All DOCUMENTS, SOURCE CODE, EXECUTABLE SOFTWARE, or things,
including presentations, instructions, technical plans, diagrams, workbooks, manuals, published
articles, publications, and user guides, relating to the use or incorporation of NETGRAVITY
with TBS WEBSITE prior to July 8, 1999, including beta testing, as referenced in, by way of
example only, Exhibit 3.
REQUEST FOR PRODUCTION NO. 12:
DOCUMENTS, SOURCE CODE, EXECUTABLE SOFTWARE, or things, sufficient to
show the technical operation or use of any functionality related to the display or incorporation of
advertisements on the website available at www.turner.com or any other website owned by TBS,
prior to July 8, 1999, including the method for selecting the advertisement.
REQUEST FOR PRODUCTION NO. 13:
DOCUMENTS, SOURCE CODE, EXECUTABLE SOFTWARE, or things, sufficient to
show the technical operation or use of any functionality related to TBS WEBSITE that returns
search results or advertisements based, in part, upon information about the user requesting the
search results, prior to July 8, 1999.
REQUEST FOR PRODUCTION NO. 14:
DOCUMENTS, SOURCE CODE, EXECUTABLE SOFTWARE, or things, sufficient to
show the technical operation or use of any functionality related to tracking the performance of
advertisements displayed or incorporated on www.turner.com or any other website owned by
TBS, prior to July 8, 1999, including whether the advertisement was clicked by a visitor to these
websites and the amount of advertising fees generated by the advertisement.

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REQUEST FOR PRODUCTION NO. 15:
DOCUMENTS sufficient to identify any persons knowledgeable about the use of
advertisements with TBS WEBSITE prior to July 8, 1999.
REQUEST FOR PRODUCTION NO. 16:
DOCUMENTS sufficient to identify any SOURCE CODE or EXECUTABLE
SOFTWARE developed by a third party related to the display or incorporation advertisements on
a web search engine webpage related to TBS WEBSITE prior to July 8, 1999.
REQUEST FOR PRODUCTION NO. 17:
DOCUMENTS sufficient to identify any SOURCE CODE or EXECUTABLE
SOFTWARE related to search engine functionality and developed by a third party that was used
in TBS WEBSITE prior to July 8, 1999.
REQUEST FOR PRODUCTION NO. 18:
All COMMUNICATIONS between YOU and NORTEL, ROCKSTAR, ROCKSTAR
SHAREHOLDER, or a named inventor on the PATENTS-IN-SUIT, related to TBS WEBSITE,
ADAPT/X, NETGRAVITY, or the PATENTS-IN-SUIT.

11

EXHIBIT 1

Case 2:13-cv-00893-JRG-RSP Document 90 Filed 06/19/14 Page 1 of 30 PageID #: 1058

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION

ROCKSTAR CONSORTIUM US LP
AND NETSTAR TECHNOLOGIES
LLC,
Civil Action No. 2:13-cv-893

Plaintiffs,
v.

JURY TRIAL DEMANDED

GOOGLE INC.,
Defendant.

PROTECTIVE ORDER
WHEREAS, Plaintiffs Rockstar Consortium US LP and Netstar Technologies LLC and
Defendant Google Inc., hereafter referred to as "the Parties," believe that certain information that
is or will be encompassed by discovery demands by the Parties involves the production or
disclosure of trade secrets, confidential business information, or other proprietary information;
WHEREAS, the Parties seek a protective order limiting disclosure thereof in accordance
with Federal Rule of Civil Procedure 26(c):
THEREFORE, it is hereby stipulated among the Parties and ORDERED that:
1.

Each Party may designate as confidential for protection under this Order, in whole or in
part, any document, information or material that constitutes or includes, in whole or in
part, confidential or proprietary information or trade secrets of the Party, or of any person
who is not a Party to this Action ("Third Party") to whom the Party reasonably believes it
owes an obligation of confidentiality with respect to such document, information or
material ("Designated Material").

Case 2:13-cv-00893-JRG-RSP Document 90 Filed 06/19/14 Page 2 of 30 PageID #: 1059

2.

Any document produced under Patent Rules 2-2, 3-2, and/or 3-4 before issuance of this
Order with the designation "Confidential" or "Confidential - Outside Attorneys' Eyes
Only" shall receive the same treatment as if designated "RESTRICTED - ATTORNEYS'
EYES ONLY" under this Order, unless and until such document is redesignated to have a
different classification under this Order.

3.

With respect to documents, information or material designated "CONFIDENTIAL,"
"RESTRICTED - ATTORNEYS' EYES ONLY," "RESTRICTED - ATTORNEYS'
EYES ONLY – PROSECUTION BAR," or "RESTRICTED CONFIDENTIAL SOURCE
CODE" ("DESIGNATED MATERIAL"),1 subject to the provisions herein and unless
otherwise stated, this Order governs, without limitation: (a) all documents, electronically
stored information, and/or things as defined by the Federal Rules of Civil Procedure;
(b) all pretrial, hearing or deposition testimony, or documents marked as exhibits or for
identification in depositions and hearings; (c) pretrial pleadings, exhibits to pleadings and
other court filings; (d) affidavits; and (e) stipulations. All copies, reproductions, extracts,
digests and complete or partial summaries prepared from any DESIGNATED
MATERIALS shall also be considered DESIGNATED MATERIAL and treated as such
under this Order.

4.

A designation of Protected Material (i.e., "CONFIDENTIAL," "RESTRICTED ATTORNEYS' EYES ONLY," "RESTRICTED - ATTORNEYS' EYES ONLY –
PROSECUTION BAR," or "RESTRICTED CONFIDENTIAL SOURCE CODE") may

1

The term DESIGNATED MATERIAL is used throughout this Order to refer to the class
of materials designated as "CONFIDENTIAL," "RESTRICTED – ATTORNEYS' EYES
ONLY," "RESTRICTED - ATTORNEYS' EYES ONLY – PROSECUTION BAR," or
"RESTRICTED CONFIDENTIAL SOURCE CODE," both individually and collectively.
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be made at any time. Inadvertent or unintentional production of documents, information
or material that has not been designated as DESIGNATED MATERIAL shall not be
deemed a waiver in whole or in part of a claim for confidential treatment. With respect to
documents, any Party that inadvertently or unintentionally produces Protected Material
without designating it as DESIGNATED MATERIAL may request destruction of that
Protected Material by notifying the recipient(s), as soon as reasonably possible after the
Producing Party becomes aware of the inadvertent or unintentional disclosure, and
providing replacement DESIGNATED MATERIAL that is properly designated. The
recipient(s) shall then destroy all copies of the inadvertently or unintentionally produced
Protected Materials and any documents, information or material derived from or based
thereon.
5.

For purposes of this Order, "CONFIDENTIAL” information shall mean all information
or material produced for or disclosed in connection with this action to a Receiving Party
that a Producing Party, considers to comprise confidential technical, sales, marketing,
financial, or other commercially sensitive information, whether embodied in physical
objects, documents, or the factual knowledge of persons, and which has been so
designated by the Producing Party. 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.

6.

"CONFIDENTIAL" documents, information and material may be disclosed only to the
following persons, except upon receipt of the prior written consent of the designating
Party, upon order of the Court, or as set forth in paragraph 17 herein:
(a)

outside counsel of record in this Action for the Parties;
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(b)

employees of such counsel assigned to and reasonably necessary to assist such
counsel in the litigation of this Action and service vendors of such counsel
(including outside copying services and outside litigation support services such as
graphics design, jury consultants, translators and interpreters) assisting in the
conduct of the Action;

(c)

Up to and including three (3) designated in-house counsel for each of the Parties
who are members of at least one state bar in good standing, who either have
responsibility for making decisions dealing directly with the litigation of this
Action, or who are assisting outside counsel in the litigation of this Action;

(d)

outside consultants or experts2 retained for the purpose of this litigation, provided
that: (1) such consultants or experts are not existing employees or presently
employed by the Parties or their affiliates; (2) before receipt of or access to any
DESIGNATED MATERIAL, the consultant or expert has completed the
Undertaking attached as Exhibit A and the same is served upon the Producing
Party with (a) a current curriculum vitae of the consultant or expert, (b) disclosure
of the consultant's or expert's employment for at least the past four years, (c)
disclosure of the consultant's or expert's publications for the last eight years, (d)
disclosure of any legal action (by name and number of the case and court) in
connection with which the consultant or expert was retained or testified at trial or
by deposition during the past four years, and (e) a identification of any patents or

2

For the purposes of this paragraph, an outside consultant or expert is defined to include
the outside consultant's or expert's direct reports and other support personnel, such that the
disclosure to a consultant or expert who employs others within his or her firm to help in his or
her analysis shall count as a disclosure to a single consultant or expert.
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patent applications in which the consultant or expert is identified as an inventor or
applicant, is involved in prosecuting or maintaining, or has any pecuniary interest,
within 10 (ten) days of receiving the materials identified in the preceding
sentence, the Producing Party may notify in writing the Party proposing the
consultant or expert that it objects to that consultant’s or expert’s receipt of or
access to DESIGNATED MATERIAL. The objection must be based on the
Producing Party’s good faith belief that disclosure of its DESIGNATED
MATERIAL to the consultant or expert will result in specific business or
economic harm to that party. The written objection must set forth in detail the
grounds on which it is based.
(i)

The Parties agree to promptly meet and confer in good faith to resolve
such objection. If after consideration of the objection, the party desiring to
disclose the DESIGNATED MATERIAL to a consultant or expert refuses
to withdraw the consultant or expert, that party shall provide notice to the
objecting party. Thereafter, the objecting party shall move the Court,
within seven (7) business days of receiving such notice, for a ruling on its
objection. A failure to object within the 10-day period or subsequently
file a motion within the seven business day period, absent an agreement of
the parties to the contrary or for an extension, shall operate as an approval
of disclosure of DESIGNATED MATERIAL to the consultant or expert.
The parties agree to cooperate in good faith to shorten the time frames set
forth in this paragraph if necessary to abide by any discovery or briefing
schedules.
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(ii)

The objecting party shall have the burden of showing to the Court "good
cause" for preventing the disclosure of its DESIGNATED MATERIAL to
the consultant or expert.

(iii)

A party who has not previously objected to disclosure of DESIGNATED
MATERIAL to a consultant or expert or whose objection has been
resolved with respect to previously produced information shall not be
precluded from raising an objection to a consultant or expert at a later time
with respect to materials or information that are produced after the time
for objecting to such a consultant or expert has expired.

Any such

objection shall be handled in accordance with the provisions set forth
above in Paragraphs 6(d)(i)-(ii) above. However, this objection shall not
serve to suspend the consultant’s or expert’s receipt of or access to
DESIGNATED MATERIAL which has already been produced;
(e)

independent litigation support services, including persons working for or as court
reporters, stenographers, or videographers; 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 non-technical jury
or trial consulting services including mock jurors (subject to § 33), and
photocopy, document imaging, and database services retained by counsel and
reasonably necessary to assist counsel with the litigation of this Action; and

(f)

the Court and any of its staff and administrative personnel, and stenographic
reporters (under seal or with other suitable precautions determined by the Court).

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7.

Documents, information or material produced in this Action, and designated as
DESIGNATED MATERIAL, shall be used by the Parties only in the litigation of this
Action and shall not be used for any other purpose. Any person or entity who obtains
access to DESIGNATED MATERIAL or the contents thereof pursuant to this Order shall
not make any copies, duplicates, extracts, summaries or descriptions of such
DESIGNATED MATERIAL or any portion thereof except as may be reasonably
necessary in the litigation of this Action.

Any such copies, duplicates, extracts,

summaries or descriptions shall be classified DESIGNATED MATERIAL and subject to
all of the terms and conditions of this Order.
8.

To the extent a Producing Party believes that certain DESIGNATED MATERIAL
qualifying to be designated CONFIDENTIAL is so sensitive that its dissemination
deserves even further limitation, the Producing Party may designate such DESIGNATED
MATERIAL "RESTRICTED -- ATTORNEYS' EYES ONLY."

9.

The RESTRICTED-ATTORNEYS’ EYES ONLY designation is reserved for
information that constitutes (a) marketing, financial, sales, web traffic, research and
development, or technical, data or information; (b) commercially sensitive competitive
information, including, without limitation, information obtained from a nonparty pursuant
to a current Nondisclosure Agreement ("NDA"); (c) information or data relating to future
products not yet commercially released and/or strategic plans; and, (d) commercial
agreements, settlement agreements or settlement communications, the disclosure of
which is likely to cause harm to the competitive position of the Producing Party. In
determining whether information should be designated as RESTRICTED-ATTORNEYS’
EYES ONLY, each party agrees to use such designation only in good faith. Technical
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information such as would trigger the prosecution bar in paragraph below must be
designated as "RESTRICTED - ATTORNEYS' EYES ONLY – PROSECUTION BAR."
The following documents and materials shall not be eligible for designation as
"RESTRICTED - ATTORNEYS' EYES ONLY – PROSECUTION BAR”: (i) documents
and information related only to damages or reasonable royalty rates; (ii) publications,
including patents and published patent applications; (iii) materials regarding third party
systems or products that were publicly known, on sale, or in public use before June 6,
1996 unless such materials are designated "RESTRICTED - ATTORNEYS' EYES
ONLY – PROSECUTION BAR” materials by a third party; and (iv) information that is
publicly available.
10.

For DESIGNATED MATERIAL designated RESTRICTED -- ATTORNEYS' EYES
ONLY or "RESTRICTED - ATTORNEYS' EYES ONLY – PROSECUTION BAR,"
access to, and disclosure of, such DESIGNATED MATERIAL shall be limited to
individuals listed in paragraphs 6 a, b, c, d, e, and f; provided, however, that access by inhouse counsel pursuant to paragraph 6(c) be limited to in-house counsel who exercise no
competitive decision-making authority on behalf of the client.

11.

The RESTRICTED CONFIDENTIAL SOURCE CODE designation is reserved for
documents containing confidential, proprietary and/or trade secret source code. The
following restrictions govern the production, review and use of RESTRICTED
CONFIDENTIAL SOURCE CODE information.
(a)

Source code, to the extent any Producing Party agrees to provide any such
information, shall ONLY be made available for inspection, not produced except
as provided for below, and shall be made available in electronic format at one of
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the locations identified in paragraph 11(d). Source Code will be loaded onto two
non-networked computers that are password protected and maintained in a secure,
locked area. To facilitate the taking of notes during the review of Source Code,
persons admitted into the room containing Source Code shall be entitled to take a
personal laptop computer that is not connected to any wired or wireless network;
however, the use or possession of any input/output device (e.g., USB memory
stick, cameras or any camera-enabled device (including camera-enabled personal
laptops), CDs, floppy disk, portable hard drive, or any devices that can access the
Internet or any other network or external system, etc.) separate from the laptop
computer is prohibited while accessing the computer containing the Source Code.
All persons entering the locked room containing the Source Code must agree to
submit to reasonable security measures to insure they are not carrying any
prohibited items before they will be given access to the locked room.

The

computers containing Source Code will be made available for inspection during
regular business hours, upon reasonable notice to the Producing Party, which shall
not be less than three business days in advance of the requested inspection;
(b)

The Receiving Party’s outside counsel and/or experts or consultants may request
that commercially available licensed software tools for viewing and searching
Source Code be installed on the secured computer. The Receiving Party must
provide the Producing Party with the CD or DVD containing such software
tool(s), and any necessary licenses, at least four business days in advance of the
date upon which the Receiving Party wishes to have the additional software tools
available for use on the stand-alone computers.
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(c)

The Receiving Party’s outside counsel and/or expert or consultant shall be entitled
to take notes relating to the Source Code but may not copy any portion of 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.

(d)

The Producing Party shall make the Source Code Material available at one of the
following locations chosen at the sole discretion of the Producing Party: (1) the
offices of the Producing Party’s primary outside counsel of record in this action;
or (2) a location mutually agreed upon by the receiving and producing parties
(e.g. an escrow company). Any location under (1) or (2) above shall be in the
continental United States.

(e)

In order to verify that its Source Code Material has not later been altered, the
Producing Party may benchmark the materials to confirm that the materials have
not been altered before and after they are provided but shall not install any
keystroke or other monitoring software on the stand-alone computer.

(f)

The Producing Party shall provide the receiving Party with information explaining
how to start, log on to, and operate the stand-alone computer in order to access the
produced Source Code Material on the stand-alone computer.

(g)

No person shall copy, e-mail, transmit, upload, download, print, photograph or
otherwise duplicate any portion of the designated Source Code, except as the
Receiving Party may request a reasonable number of pages of Source Code to be
printed by the Producing Party, but only if and to the extent necessary for use in
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this action. Within 5 business days or such additional time as necessary due to
volume requested, the Producing Party will provide the requested material on
watermarked or colored paper bearing Bates numbers and the legend
“RESTRICTED CONFIDENTIAL - SOURCE CODE" unless objected to as
discussed below. The printed pages shall constitute part of the Source Code
produced by the Producing Party in this action. At the Receiving Party’s request,
up to two additional sets (or subsets) of printed Source Code may be requested
and provided by the Producing Party in a timely fashion.
(h)

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 five business days. If after
meeting and conferring the Producing Party and the Receiving Party cannot
resolve the objection (where such meet-and-confer need not take place in person),
the Producing Party shall be entitled to seek a Court resolution of whether the
printed Source Code in question is reasonably necessary to any case preparation
activity. Contested Source Code print outs need not be produced to the requesting
party until the matter is resolved by the Court. If the Producing Party does not
seek a Court resolution, then the printouts shall be provided.

(i)

Any printed pages of Source Code, and any other documents or things reflecting
Source Code that have been designated by the Producing Party as “RESTRICTED
CONFIDENTIAL SOURCE CODE” may not be copied, digitally imaged or
otherwise duplicated, except in limited excerpts necessary to attach as exhibits to
depositions, expert reports, or court filings as discussed below.
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(j)

Any paper copies designated “RESTRICTED CONFIDENTIAL SOURCE
CODE” shall be stored or viewed only at (i) the offices of outside counsel for the
Receiving Party, (ii) the offices of outside experts or consultants who have been
approved to access Source Code; (iii) the site where any deposition is taken (iv)
the Court; or (v) any intermediate location necessary to transport the information
to a hearing, trial or deposition or between locations (i) through (iv). Any such
paper copies shall be maintained at all times in a secure location under the direct
control of an expert or consultant who has been approved to access Source Code
(if stored at the expert or consultant’s office) or counsel responsible for
maintaining the security and confidentiality of the designated materials. Nothing
herein shall preclude the Receiving Party from mailing, shipping, or delivering
source code between locations (i) through (v), provided that the Receiving Party
uses at least a tracking number (e.g. a FedEx tracking number) and signed
delivery confirmation in mailing, shipping, or delivering between such locations.
Should such a shipment go missing, the Receiving Party shall timely notify the
Producing Party and the Court with specifics.

(k)

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, and the Producing Party shall be entitled to request a copy
of the daily log. In the alternative, if the Receiving Party prefers, the Producing
Party may retain the copy of the daily log that is maintained by the Receiving
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Party.

The Producing Party shall be entitled to have a person observe all

entrances and exits from the Source Code viewing room.
(l)

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, 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.

(m)

The Receiving Party will not copy, remove, or otherwise transfer any portion of
the Source Code from the Source Code Computer including, without limitation,
copying, removing, or transferring any portion of the Source Code onto any other
computers or peripheral equipment. The Receiving Party will not transmit any
portion of the Source Code in any way from the location of the Source Code
inspection.

(n)

Access

to

DESIGNATED

MATERIAL

designated

RESTRICTED

CONFIDENTIAL - SOURCE CODE shall be limited to:
(i) Outside counsel of record for the parties to this action, including any attorneys,
paralegals, technology specialists and clerical employees of their respective law
firms;
(ii) Up to five (5) outside experts or consultants per party, pre-approved in
accordance with Paragraph 6(d) and specifically identified as eligible to access
Source Code;

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(iii) The Court, its technical advisor (if one is appointed), the jury, court
personnel, and court reporters or videographers recording testimony or other
proceedings in this action. Court reporters and/or videographers shall not retain
or be given copies of any portions of the Source Code.

If used during a

deposition, the deposition record will identify the exhibit by its production
numbers;
(iv) While testifying at deposition or trial in this action only: (a) any current or
former officer, director or employee of the Producing Party or original source of
the information; (b) any person designated by the Producing Party to provide
testimony pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure;
and/or (c) any person who authored, previously received (other than in connection
with this litigation), or was directly involved in creating, modifying, or editing the
Source Code, as evident from its face or reasonably certain in view of other
testimony or evidence. Persons authorized to view Source Code pursuant to this
sub-paragraph shall not retain or be given copies of the Source Code except while
so testifying.
(o)

The Receiving Party’s outside counsel shall maintain a log of all copies of the
Source Code (received from a Producing Party) that are delivered by the
Receiving Party to any qualified person under Paragraph 11(n) above. The log
shall include the names of the recipients and reviewers of copies and locations
where the copies are stored. Upon request by the Producing Party, the Receiving
Party shall provide reasonable assurances and/or descriptions of the security

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measures employed by the Receiving Party and/or qualified person that receives a
copy of any portion of the Source Code.
(p)

Except as provided in this paragraph, the Receiving Party may not create
electronic images, or any other images, of the Source Code from the paper copy
for use on a computer (e.g., may not scan the source code to a PDF, or photograph
the code). The Receiving Party may create an electronic copy or image of limited
excerpts of Source Code only to the extent necessary in a pleading, exhibit, expert
report, discovery document, deposition transcript, other Court document, or any
drafts of these documents ("SOURCE CODE DOCUMENTS"). The Receiving
Party shall only include such excerpts as are reasonably necessary for the
purposes for which such part of the Source Code is used. Images or copies of
Source Code shall not be included in correspondence between the parties
(references to production numbers shall be used instead) and shall be omitted
from pleadings and other papers except to the extent permitted herein. The
Receiving Party may create an electronic image of a selected portion of the
Source Code only when the electronic file containing such image has been
encrypted using commercially reasonable encryption software including password
protection. The communication and/or disclosure of electronic files containing
any portion of Source Code shall at all times be limited to individuals who are
authorized to see Source Code under the provisions of this Protective Order. The
Receiving Party shall maintain a log of all SOURCE CODE DOCUMENTS in its
possession or in the possession of its retained consultants, including the names of
the recipients and reviewers of any SOURCE CODE DOCUMENTSand the
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locations

where

they

are

stored.

Additionally,

all

SOURCE

CODE

DOCUMENTS must be labeled "RESTRICTED CONFIDENTIAL - SOURCE
CODE."
(q)

A receiving Party may include excerpts of Source Code Material in a pleading,
exhibit, expert report, discovery document, deposition transcript, other Court
document, provided that the Source Code Documents are appropriately marked
under this Order, restricted to those who are entitled to have access to them as
specified herein, and, if filed with the Court, filed under seal in accordance with
the Court's rules, procedures and orders;

(r)

To the extent portions of Source Code Material are quoted in a Source Code
Document, either (1) the entire Source Code Document will be stamped and
treated as RESTRICTED CONFIDENTIAL SOURCE CODE or (2) those pages
containing quoted Source Code Material will be separately stamped and treated as
RESTRICTED CONFIDENTIAL SOURCE CODE;

(s)

All copies of any portion of the Source Code in whatever form shall be securely
destroyed if they are no longer in use. Copies of Source Code that are marked as
deposition exhibits shall not be provided to the Court Reporter or attached to
deposition transcripts; rather, the deposition record will identify the exhibit by its
production numbers.

(t)

The Receiving Party’s outside counsel may only disclose a copy of the Source
Code to individuals specified in Paragraph 11(n) above (e.g., Source Code may
not be disclosed to in-house counsel).

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(u)

If the receiving Party's outside counsel, consultants, or experts obtain printouts or
photocopies of Source Code Material, the receiving Party shall ensure that such
outside counsel, consultants, or experts keep the printouts or photocopies in a
secured locked area in the offices of such outside counsel, consultants, or expert.
The receiving Party may also temporarily keep the printouts or photocopies at:
(i) the Court for any proceedings(s) relating to the Source Code Material, for the
dates associated with the proceeding(s); (ii) the sites where any deposition(s)
relating to the Source Code Material are taken, for the dates associated with the
deposition(s); (iii) the Court for any filing(s) related to the Source Code Material,
filed under court seal; and (iv) any intermediate location reasonably necessary to
transport the printouts or photocopies (e.g., a hotel prior to a Court proceeding or
deposition).

12.

Non-parties may be examined or testify concerning any document containing
DESIGNATED MATERIAL of a producing party which appears on its face or from
other documents or testimony to have been received from or communicated to the nonparty as a result of any contact or relationship with the producing party or a
representative of the producing party. Any person other than the witness, his or her
attorney(s), or any person qualified to receive DESIGNATED MATERIAL under this
Order shall be excluded from the portion of the examination concerning such
information, unless the producing party consents to persons other than qualified
recipients being present at the examination. If the witness is represented by an attorney
who is not qualified under this Order to receive such information, then prior to the
examination, the attorney must provide a signed statement, in the form of Attachment A
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hereto, that he or she will comply with the terms of this Order and maintain the
confidentiality of DESIGNATED MATERIAL disclosed during the course of the
examination. In the event that such attorney declines to sign such a statement prior to the
examination, the producing party, by its attorneys, may seek a protective order from the
Court prohibiting the attorney from disclosing DESIGNATED MATERIAL.
13.

Any attorney representing a Party, whether in-house or outside counsel, and any person
associated with a Party and permitted to receive the other Party’s Protected Material that
is designated RESTRICTED -- ATTORNEYS’ EYES ONLY and/or RESTRICTED
CONFIDENTIAL

SOURCE

CODE

(collectively

“HIGHLY

SENSITIVE

MATERIAL”), who obtains, receives, has access to, or otherwise learns, in whole or in
part, the other Party’s HIGHLY SENSITIVE MATERIAL under this Order shall not
prepare, prosecute, supervise, or assist in the preparation or prosecution of any patent
application pertaining to the field of the invention of the patents-in-suit on behalf of the
receiving Party or its acquirer, successor, predecessor, or other affiliate during the
pendency of this Action and for one year after its conclusion, including any appeals. To
ensure compliance with the purpose of this provision, each Party shall create an “Ethical
Wall” between those persons with access to HIGHLY SENSITIVE MATERIAL and any
individuals who, on behalf of the Party or its acquirer, successor, predecessor, or other
affiliate, prepare, prosecute, supervise or assist in the preparation or prosecution of any
patent application pertaining to the field of invention of the patent-in-suit. For the
avoidance of doubt, nothing in this provision shall preclude any person who obtains,
receives, has access to, or otherwise learns, in whole or in part, the other Party's Protected
Material under this Order from participating in any post-grant proceeding, except that
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such persons may not directly or indirectly assist in drafting, amending or proposing for
substitution patent claims in any post-grant proceeding. Nothing in this Section shall
prevent any attorney from sending non-confidential prior art to an attorney involved in
patent prosecution for purposes of ensuring that such prior art is submitted 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. Nothing in this provision shall
prohibit any attorney of record in this litigation from discussing any aspect of this case
that is reasonably necessary for the prosecution or defense of any claim or counterclaim
in this litigation with his/her client.

The parties expressly agree that the Prosecution Bar

set forth herein shall be personal to any attorney who review DESIGNATED
MATERIAL marked RESTRICTED ATTORNEYS' EYES ONLY – PROSECUTION
BAR or RESTRICTED CONFIDENTIAL SOURCE CODE and shall not be imputed to
any other persons or attorneys at the attorneys' law firm. Individuals who work on this
matter without reviewing protected material marked RESTRICTED ATTORNEYS'
EYES ONLY – PROSECUTION BAR or RESTRICTED CONFIDENTIAL SOURCE
CODE shall not be restricted from engaging in Prosecution Activity on matters that fall
within the Prosecution Bar.

This prosecution bar may not be applied to operate

retroactively against any person who receives an inadvertently mis-designated or
undesignated document that is later corrected pursuant to paragraph 4 above.
14.

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. Pursuant to Federal Rule of
Evidence 502(d), the production of a privileged or work-product-protected document is
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not a waiver of privilege or protection from discovery in this case or in any other federal
or state proceeding. For example, the mere production of privilege or work-productprotected documents in this case as part of a mass production is not itself a waiver in this
case or any other federal or state proceeding. A Producing Party may assert privilege or
production over produced documents at any time by notifying the receiving party in
writing of the assertion of privilege or protection. In addition, information that contains
privileged matter or attorney work product shall be immediately returned if such
information appears on its face to have been advertently produced. When a Producing
Party or Receiving Party identifies such privileged or protected information, a Receiving
Party: (1) shall not use, and shall immediately cease any prior use of, such information;
(2) shall take reasonable steps to retrieve the information from others to which the
receiving Party disclosed the information; (3) shall within five business days of the
Producing Party's request return to the Producing Party or destroy the information and
destroy all copies thereof; and (4) shall confirm to the Producing Party the destruction
under (3) above of all copies of the information not returned to the Producing Party. No
one shall use the fact or circumstances of production of the information in this Action to
argue that any privilege or protection has been waived. Notwithstanding this provision,
no Party shall be required to return or destroy any information that may exist on their
firm’s electronic back-up systems that are over-written in the normal course of business.
15.

There shall be no disclosure of any DESIGNATED MATERIAL by any person
authorized to have access thereto to any person who is not authorized for such access
under this Order. The Parties are hereby ORDERED to safeguard all such documents,

- 20 -

Case 2:13-cv-00893-JRG-RSP Document 90 Filed 06/19/14 Page 21 of 30 PageID #: 1078

information and material to protect against disclosure to any unauthorized persons or
entities.
16.

Nothing contained herein shall be construed to prejudice any Party's right to use any
DESIGNATED MATERIAL in taking testimony at any deposition or hearing provided
that the DESIGNATED MATERIAL is only disclosed to a person(s) who is: (i) eligible
to have access to the DESIGNATED MATERIAL by virtue of his or her employment
with the designating Party, (ii) identified in the DESIGNATED MATERIAL as an
author, addressee, or copy recipient of such information, (iii) although not identified as an
author, addressee, or copy recipient of such DESIGNATED MATERIAL, has, in the
ordinary course of business, seen such DESIGNATED MATERIAL, (iv) a current or
former officer, director or employee of the Producing Party or a current or former officer,
director or employee of a company affiliated with the Producing Party; (v) counsel for a
Party, including outside counsel and in-house counsel (subject to paragraphs 6, 10, and
11(n) of this Order); (vi) an independent contractor, consultant, and/or expert retained for
the purpose of this litigation; (vii) court reporters and videographers; (viii) the Court; or
(ix) other persons entitled hereunder to access to DESIGNATED MATERIAL.
DESIGNATED MATERIAL shall not be disclosed to any other persons unless prior
authorization is obtained from counsel representing the Producing Party or from the
Court.

17.

Parties may, at the deposition or hearing or within thirty (30) days after receipt of a
deposition or hearing transcript, designate the deposition or hearing transcript or any
portion thereof as "CONFIDENTIAL," "RESTRICTED - ATTORNEY' EYES ONLY,"
"RESTRICTED - ATTORNEYS' EYES ONLY – PROSECUTION BAR," or
- 21 -

Case 2:13-cv-00893-JRG-RSP Document 90 Filed 06/19/14 Page 22 of 30 PageID #: 1079

"RESTRICTED CONFIDENTIAL SOURCE CODE" pursuant to this Order. Access to
the deposition or hearing transcript so designated shall be limited in accordance with the
terms of this Order. Until expiration of the 30-day period, the entire deposition or
hearing transcript shall be treated as RESTRICTED ATTORNEYS’ EYES ONLY.
18.

Native Files. Where electronic files and documents are produced in native electronic
format, such electronic files and documents shall be designated for protection under this
Order by appending to the file names or designators information indicating whether the
file

contains

CONFIDENTIAL,

RESTRICTED

ATTORNEYS'

EYES

ONLY,

RESTRICTED - ATTORNEYS' EYES ONLY – PROSECUTION BAR or
RESTRICTED CONFIDENTIAL SOURCE CODE material, or shall use any other
reasonable method for so designating DESIGNATED MATERIAL produced in
electronic format. When electronic files or documents are printed for use at deposition, in
a court proceeding, or for provision in printed form to an expert or consultant preapproved pursuant to Paragraph 6(d), or for any other reason consistent with the
provisions of this Protective Order, the party printing the electronic files or documents
shall affix a legend to the printed document corresponding to the designation of the
Designating Party and including the production number and designation associated with
the native file.
19.

Any DESIGNATED MATERIAL that is filed with the Court shall be filed under seal and
shall remain under seal until further order of the Court.

The filing party shall be

responsible for informing the Clerk of the Court that the filing should be sealed and for
placing the legend "FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER"
above the caption and conspicuously on each page of the filing. Exhibits to a filing shall
- 22 -

Case 2:13-cv-00893-JRG-RSP Document 90 Filed 06/19/14 Page 23 of 30 PageID #: 1080

conform to the labeling requirements set forth in this Order. If a pretrial pleading filed
with the Court, or an exhibit thereto, discloses or relies on confidential documents,
information or material, such confidential portions shall be redacted to the extent
necessary and the pleading or exhibit filed publicly with the Court.
20.

A Party may request in writing to the other Party that the designation given to any
DESIGNATED MATERIAL be modified or withdrawn. If the designating Party does
not agree to redesignation within ten (10) days of receipt of the written request, the
requesting Party may apply to the Court for relief. Upon any such application to the
Court, the burden shall be on the designating Party to show why its classification is
proper. Such application shall be treated procedurally as a motion to compel pursuant to
Federal Rules of Civil Procedure 37, subject to the Rule's provisions relating to sanctions.
In making such application, the requirements of the Federal Rules of Civil Procedure and
the Local Rules of the Court shall be met. Pending the Court's determination of the
application, the designation of the designating Party shall be maintained.

21.

No DESIGNATED MATERIAL may leave the territorial boundaries of the United States
of America. Without limitation, this prohibition extends to DESIGNATED MATERIAL
(including copies) in physical and electronic form. The viewing of DESIGNATED
MATERIAL through electronic means outside the territorial limits of the United States of
America is similarly prohibited. Notwithstanding this prohibition, DESIGNATED
MATERIAL, exclusive of material designated RESTRICTED CONFIDENTIAL
SOURCE CODE, and to the extent otherwise permitted by law, may be taken outside the
territorial limits of the United States if it is reasonably necessary for a deposition taken in
a foreign country. The restrictions contained within this paragraph may be amended
- 23 -

Case 2:13-cv-00893-JRG-RSP Document 90 Filed 06/19/14 Page 24 of 30 PageID #: 1081

through the consent of the producing Party to the extent that such agreed to procedures
conform with applicable export control laws and regulations.
22.

Each outside consultant or expert to whom DESIGNATED MATERIAL is disclosed in
accordance with the terms of this Order shall be advised by counsel of the terms of this
Order, shall be informed that he or she is subject to the terms and conditions of this
Order, and shall sign an acknowledgment that he or she has received a copy of, has read,
and has agreed to be bound by this Order. A copy of the acknowledgment form is
attached as Appendix A. It is expressly contemplated that the protections and obligations
provided under this Order apply to non-parties who produce or otherwise provide
DESIGNATED MATERIAL.

23.

To the extent that discovery or testimony is taken of Third Parties, the Third Parties may
designate as "CONFIDENTIAL," “RESTRICTED - ATTORNEYS' EYES ONLY –
PROSECUTION BAR,” or "RESTRICTED -- ATTORNEYS' EYES ONLY" any
documents, information or other material, in whole or in part, produced or give by such
Third Parties.

The Third Parties shall have ten (10) days after production of such

documents, information or other materials to make such a designation. Until that time
period lapses or until such a designation has been made, whichever occurs sooner, all
documents, information or other material so produced or given shall be treated as
"RESTRICTED ATTORNEYS’ EYES ONLY" in accordance with this Order.
24.

Within 60 days after a final non-appealable judgment or order, or the complete settlement
of all claims asserted against all parties in this action, each Party must return all materials
designated by any other Producing Party or Third Party under this Order to the Producing
Party or Third Party, or destroy such material, including all copies thereof, and provide to
- 24 -

Case 2:13-cv-00893-JRG-RSP Document 90 Filed 06/19/14 Page 25 of 30 PageID #: 1082

the Producing Party or Third Party a written certification of compliance with this
provision. Notwithstanding this provision, outside counsel of record are entitled to retain
archival copies of all pleadings, filings, or other documents served by or on any Party or
Third Party, trial, deposition, and hearing transcripts, legal memoranda, correspondence,
expert reports, attorney work product, and consultant and expert work product, and
exhibits to any of these materials, even if such materials reflect materials designated
under this Order. Notwithstanding this provision, outside litigation counsel shall not be
required to delete information that may reside on their firm’s electronic back-up systems
that are over-written in the normal course of business. Any such archival and/or backup
copies of materials designated under this Order shall remain subject to the provisions of
this Order.
25.

The failure to designate documents, information or material in accordance with this Order
and the failure to object to a designation at a given time shall not preclude the filing of a
motion at a later date seeking to impose such designation or challenging the propriety
thereof. The entry of this Order and/or the production of documents, information and
material hereunder shall in no way constitute a waiver of any objection to the furnishing
thereof, all such objections being hereby preserved.

26.

Any Party knowing or believing that any other party is in violation of or intends to violate
this Order and has raised the question of violation or potential violation with the opposing
party and has been unable to resolve the matter by agreement may move the Court for
such relief as may be appropriate in the circumstances. Pending disposition of the motion
by the Court, the Party alleged to be in violation of or intending to violate this Order shall

- 25 -

Case 2:13-cv-00893-JRG-RSP Document 90 Filed 06/19/14 Page 26 of 30 PageID #: 1083

discontinue the performance of and/or shall not undertake the further performance of any
action alleged to constitute a violation of this Order.
27.

Production of DESIGNATED MATERIAL by each of the Parties shall not be deemed a
publication of the documents, information and material (or the contents thereof) produced
so as to void or make voidable whatever claim the Parties may have as to the proprietary
and confidential nature of the documents, information or other material or its contents.

28.

Nothing in this Order shall be construed to effect an abrogation, waiver or limitation of
any kind on the rights of each of the Parties to assert any applicable discovery or trial
privilege.

29.

If at any time documents containing DESIGNATED MATERIAL are subpoenaed by any
court, arbitral, administrative or legislative body, or are otherwise requested in discovery,
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 days of the date written notice is given, the party to whom the
referenced subpoena is directed may produce such documents in response thereto, but
shall take all reasonable measures to have such documents treated in accordance with
terms of this Protective Order.

30.

The United States District Court for the Eastern District of Texas 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
- 26 -

Case 2:13-cv-00893-JRG-RSP Document 90 Filed 06/19/14 Page 27 of 30 PageID #: 1084

record. This Court retains and shall have continuing jurisdiction over the parties and
recipients of the DESIGNATED MATERIAL for enforcement of the provision of this
Agreed Protective Order following termination of this litigation. All disputes concerning
DESIGNATED MATERIAL produced under the protection of this Agreed Protective
Order shall be resolved by the United States District Court for the Eastern District of
Texas.
31.

Each of the Parties shall also retain the right to file a motion with the Court (a) to modify
this Order to allow disclosure of DESIGNATED MATERIAL to additional persons or
entities if reasonably necessary to prepare and present this Action and (b) to apply for
additional protection of DESIGNATED MATERIAL. In the event such an application is
made, all persons described therein shall be bound by the terms of this Order unless and
until it is modified by the Court. This Order is also subject to revocation or modification
by written agreement of the Parties (or, as applicable, the Parties and non-parties).

32.

Mock jurors hired by jury consultants in connection with this litigation may not view or
receive any DESIGNATED MATERIALS; but may view presentations or summaries
derived from DESIGNATED MATERIALS, not including Source Code Material
provided: (1) they are not affiliated with any party to this case or their direct competitor;
(2) they agree in writing to be bound by confidentiality and not to disclose the content or
substance of any such derivative materials to any other person outside the jury research
exercise; and (3) they are not themselves given custody of any DESIGNATED
MATERIALS or of any derivative materials, nor permitted to remove any presentations,
questionnaires or notes taken during the exercise from any room in which the research is
conducted. For purposes of this paragraph, excerpts from depositions shall not be
- 27 -

Case 2:13-cv-00893-JRG-RSP Document 90 Filed 06/19/14 Page 28 of 30 PageID #: 1085

considered DESIGNATED MATERIALS, so long as the excerpts do not contain more
than five minutes of testimony from any single witness’s deposition.
SIGNED this 19th day of June, 2014.

__________
__ __ __
__________________
_
__
___________
__
__
_
____________________________________
ROY S. PAYNE
AY
AY
PAYNE
UNITED STATES MAGISTRATE JUDGE

- 28 -

Case 2:13-cv-00893-JRG-RSP Document 90 Filed 06/19/14 Page 29 of 30 PageID #: 1086

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION

ROCKSTAR CONSORTIUM US LP
AND NETSTAR TECHNOLOGIES
LLC,
Civil Action No. 2:13-cv-893

Plaintiffs,
v.

JURY TRIAL DEMANDED

GOOGLE INC.,
Defendant.

APPENDIX A
UNDERTAKING OF EXPERTS OR CONSULTANTS REGARDING
PROTECTIVE ORDER
I, _____________________________ declare that:
1.

My address is ______________________________.
__________. My current occupation is

2.

My current employer is
.

I have received a copy of the Protective Order in this Action. I have carefully read and
understand the provisions of the Protective Order.

3.

I will comply with all of the provisions of the Protective Order. I will hold in confidence,
will not disclose to anyone not qualified under the Protective Order, and will use only for
purposes of this Action any information designated as "CONFIDENTIAL,"
"RESTRICTED -- ATTORNEYS' EYES ONLY," or "RESTRICTED CONFIDENTIAL
SOURCE CODE" that is disclosed to me.
- 29 -

Case 2:13-cv-00893-JRG-RSP Document 90 Filed 06/19/14 Page 30 of 30 PageID #: 1087

4.

Promptly upon termination of these actions, I will return all documents and things
designated as "CONFIDENTIAL," "RESTRICTED -- ATTORNEYS' EYES ONLY," or
"RESTRICTED CONFIDENTIAL SOURCE CODE" that came into my possession, and
all documents and things that I have prepared relating thereto, to the outside counsel for
the Party by whom I am employed.

5.

I hereby submit to the jurisdiction of this Court for the purpose of enforcement of the
Protective Order in this Action.
I declare under penalty of perjury that the foregoing is true and correct.

Signature
Date

- 30 -

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