Princeton Digital Image Corporation v. Microsoft Corporation

Filing 1

MOTION to Compel Microsoft Corporation to Respond to Subpoena, by Petitioner Princeton Digital Image Corporation. (Attachments: # 1 PROPOSED Order Granting Motion to Compel, # 2 PROPOSED Protective Order, # 3 Declaration of Jeffrey S. Pollack, # 4 Certificate of Service, # 5 E-mail Requesting New Case) Noting Date 1/13/2012. (JS)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON AT SEATTLE

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PRINCETON DIGITAL IMAGE
CORPORATION,
Movant,

NO.
[Original action pending in U.S. District
Court for the Eastern District of Texas,
PDIC v. Canon, Case No. 2:10-cv-29 JRG]

v.
[PROPOSED]
MICROSOFT CORPORATION,
PROTECTIVE ORDER

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Respondent.
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NOTE ON CALENDAR:
January 13, 2012

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The Court enters the following Protective Order to facilitate document disclosure and
production under the Local Rules of this Court and the Federal Rules of Civil Procedure. This
Order shall remain in effect pursuant to ¶ 15 through the conclusion of the underlying litigation
currently pending before the United States District Court for the Eastern District of Texas
captioned Princeton Digital Image Corporation v. Canon, Inc., et al., No. 2:10-cv-00029-TJW
(the “underlying litigation”) or, in the event that the underlying litigation is transferred to
another jurisdiction, the completion of litigation in that jurisdiction.
In support of this Order, this Court finds that:

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PROTECTIVE ORDER - 1
No.

SAVITT BRUCE & WILLEY LLP
1425 Fourth Avenue Suite 800
Seattle, Washington 98101-2272
[phone]

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Princeton Digital Corporation (“PDIC”) served Microsoft Corporation (“Microsoft”)

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with a subpoena pursuant to which Confidential Information is likely to be disclosed or

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produced.

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Microsoft asserts that public dissemination and disclosure of Confidential Information
could severely injure or damage it and could place it at a competitive disadvantage;

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Counsel for PDIC is presently without sufficient information to accept the

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representation(s) made by Microsoft as to the confidential, proprietary, and/or trade secret

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nature of such Confidential Information; and

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To protect the respective interests of Microsoft and to facilitate the progress of
disclosure and discovery pursuant to PDIC’s subpoena, the following Order should issue:

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IT IS THEREFORE ORDERED THAT:

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Any document, electronically stored information (“ESI”), or thing being

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produced or disclosed by Microsoft that Microsoft reasonably and in good faith believes

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constitutes or discloses a trade secret or other proprietary or confidential business, technical,

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sales, marketing, financial, or other commercial information that Microsoft would not disclose

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to third parties or that it would cause third parties to maintain in confidence, Microsoft may

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designate such document, ESI, or thing “Confidential” (collectively “Confidential

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Information”). Hereinafter, for purposes of this Order, the term “document” or “Document”

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also includes ESI.

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Confidential Information may further include, but is not limited to: technical

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information such as product design and operation and manufacturing techniques or processing

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information, trade secrets, formulas, research and development information, source code, object

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code, sales and cost information, pricing information, patent license agreements, information

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that was generated in connection with, or reveals the content of, patent licensing negotiations,

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information that Microsoft has treated as confidential and is not subject to public disclosure,

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information within the definition of trade secret as set forth in Section 1(4) of the Uniform

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PROTECTIVE ORDER - 2
No.

SAVITT BRUCE & WILLEY LLP
1425 Fourth Avenue Suite 800
Seattle, Washington 98101-2272
[phone]

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Trade Secrets Act (1985), and any other information that would qualify as confidential pursuant

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to Rule 26(c) of the Federal Rules of Civil Procedure or any other legal standard.

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Confidential Information shall not include information or material that (a) was, is, or

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becomes public in a manner other than by violation of this Order; (b) is acquired by PDIC from

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a third party having the right to disclose such information or material; (c) was already lawfully

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possessed by PDIC before the disclosure by Microsoft; or (d) was independently developed by

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PDIC by personnel who did not receive or have access to Microsoft’s Confidential Information.

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2.

Protected Documents. Documents, discovery responses, and any other

physical object containing Confidential Information produced by a Designating Party are
referred to herein collectively as “Protected Documents.”
3.

Designation. Protected Documents designated as “CONFIDENTIAL” may

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include, but are not limited to, confidential technical, marketing, business and trade information

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unknown to the public. Protected Documents designated as “OUTSIDE COUNSEL ONLY”

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shall include, but are not limited to, highly confidential and sensitive information related to

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research, development, design, sales, marketing, manufacturing or other activities that

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Microsoft reasonably and in good faith believes is so highly sensitive that its disclosure to

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persons other than those specified in ¶ 6 could reasonably be expected to result in injury to

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Microsoft. Protected Documents designated as “CONFIDENTIAL-OUTSIDE COUNSEL

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ONLY-SOURCE CODE” shall include Confidential Information described in Exhibit C. The

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identification of Protected Documents with any of these designations is referred to herein as

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“Confidential Designation” or “Designated Under This Protective Order.”

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Microsoft may make Confidential Designations on such Protected Documents for which

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Microsoft believes in good faith that there is a right to confidential treatment under Rule 26 of

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the Federal Rules of Civil Procedure or this Order consistent with the designation level.

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Microsoft represents that such information does exist, and that it has historically maintained

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such informational confidential in the ordinary course of business, and will continue to do so.

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PROTECTIVE ORDER - 3
No.

SAVITT BRUCE & WILLEY LLP
1425 Fourth Avenue Suite 800
Seattle, Washington 98101-2272
[phone]

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If it comes to Microsoft’s attention that Protected Documents that it designated for

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protection do not qualify for protection at all, or do not qualify for the level of protection

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initially asserted, Microsoft must promptly notify PDIC that it is withdrawing the mistaken

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designation.

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4.

General Use and Disclosure of Confidential Information. Confidential

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Information, whether embodied in a Protected Document or not, shall not be used or revealed,

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shown, disseminated, copied, or in any way communicated to anyone by PDIC for any purpose

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whatsoever, except as provided herein.

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5.

Use and Disclosure of “CONFIDENTIAL” Documents. Protected

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Documents designated as “CONFIDENTIAL” and any information contained therein may be

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revealed or shown only for purposes of the underlying litigation to the following persons or

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entities:

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a.

This Court and its personnel;

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b.

The Court presiding over the underlying litigation and its personnel;

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c.

Outside Counsel for PDIC (as used herein, “Outside Counsel” shall
mean attorneys retained to represent any party in this miscellaneous
action and the underlying litigation);

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Employees of such Outside Counsel (excluding experts, consultants, and
investigators) assigned to and necessary to assist such counsel in the
preparation and trial of this litigation;

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Employees of PDIC who are reasonably necessary for development and
presentation of the claims or defenses in the underlying litigation;

f.

Employees of any professional photocopy service or graphics design
service, legal interpreters or translators, or jury consultants (including
mock jurors, focus group members, and the like) used by Outside
Counsel;

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Court reporters taking testimony in this miscellaneous action and the
underlying litigation and their necessary stenographic, videographic, and
clerical personnel;

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Any author or recipient (actual or reasonably believed) of such Protected
Documents designated as “CONFIDENTIAL”;

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PROTECTIVE ORDER - 4
No.

SAVITT BRUCE & WILLEY LLP
1425 Fourth Avenue Suite 800
Seattle, Washington 98101-2272
[phone]

i.

Personnel of third party vendors engaged by PDIC or by Outside
Counsel to assist in (i) the coding, imaging, or other management of
documents produced in discovery in the underlying litigation; (ii) the
preparation of demonstrative exhibits or other visual aids for
presentation at a hearing or trial; or (iii) jury research and analysis,
provided that such personnel of third party vendors shall not be
employees of a party;

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Any independent consultant, investigator, or expert retained by, or at the
direction of, PDIC or its Outside Counsel to assist in the preparation for
the underlying litigation or to testify at trial or other hearing, provided
that the Protected Documents or any information contained therein
disclosed to the independent consultant, investigator, or expert pertain to
the expected consultation or testimony of such person. The Protected
Documents may be shown to assistants and staff associated with and
acting under the supervision of such independent consultant,
investigator, or expert; and

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To Outside Counsel for the defendants in the underlying litigation and
employees of the defendants in the underlying litigation who are
reasonably necessary for development and presentation of the claims or
defenses in the underlying litigation. If “Confidential” documents are
disclosed to Outside Counsel or defendants’ employees in the underlying
litigation, such disclosure shall be done pursuant to an appropriate
protective order entered in the underlying litigation and subject to the
same, equivalent, or more restrictive confidentiality designation as the
designation chosen by Microsoft pursuant to this Order.

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Use and Disclosure of “OUTSIDE COUNSEL ONLY” Documents.

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Protected Documents designated as “OUTSIDE COUNSEL ONLY” and any information

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contained therein may be revealed or shown only for purposes of the underlying litigation to

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the following persons or entities:

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a.

This Court and its personnel;

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b.

The Court presiding over the underlying litigation and its personnel;

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c.

Outside Counsel for PDIC

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d.

Employees of such Outside Counsel (excluding experts, consultants, and
investigators) assigned to and necessary to assist such counsel in the
preparation and trial of this litigation;

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PROTECTIVE ORDER - 5
No.

SAVITT BRUCE & WILLEY LLP
1425 Fourth Avenue Suite 800
Seattle, Washington 98101-2272
[phone]

e.

Employees of any professional photocopy service or graphics design
service, legal interpreters or translators, or jury consultants (including
mock jurors, focus group members, and the like) used by counsel;

f.

Court reporters taking testimony in this miscellaneous action and the
underlying litigation and their necessary stenographic, videographic, and
clerical personnel;

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Any author or recipient (actual or reasonably believed) of such Protected
Documents designated as “CONFIDENTIAL”;

h.

Personnel of third party vendors engaged by PDIC or by Outside
Counsel for a party to assist in (i) the coding, imaging, or other
management of documents produced in discovery in the underlying
litigation; (ii) the preparation of demonstrative exhibits or other visual
aids for presentation at a hearing or trial; or (iii) jury research and
analysis, provided that such personnel of third party vendors shall not be
employees of a party;

i.

Any independent consultant, investigator, or expert retained by, or at the
direction of, PDIC or its Outside Counsel to assist in the preparation for
this litigation or to testify at trial or other hearing, provided that the
Protected Documents or any information contained therein disclosed to
an independent consultant, investigator, or expert pertain to the expected
consultation or testimony of such person. The Protected documents may
be shown to assistants and staff associated with and acting under the
supervision of such independent consultant, investigator, or expert; and

j.

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To Outside Counsel for the defendants in the underlying litigation. If
“Outside Counsel Only” documents are disclosed to Outside Counsel in
the underlying litigation, such disclosure shall be done pursuant to an
appropriate protective order entered in the underlying litigation and
subject to the same, equivalent, or more restrictive confidentiality
designation as the designation chosen by Microsoft pursuant to this
Order.

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7.

Filings With This Court. Protected Documents that have been designated

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“CONFIDENTIAL”, “OUTSIDE COUNSEL ONLY” and/or “CONFIDENTIAL-OUTSIDE

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COUNSEL ONLY-SOURCE CODE” under this Protective Order may be filed as sealed

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documents with this Court and in the underlying litigation. Such Protected Documents shall be

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filed in accordance with the Local Rules of this Court and the court presiding over the

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underlying litigation, and shall include on a cover page one of the following statements,

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whichever is appropriate:
PROTECTIVE ORDER - 6
No.

SAVITT BRUCE & WILLEY LLP
1425 Fourth Avenue Suite 800
Seattle, Washington 98101-2272
[phone]

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“FILED UNDER SEAL

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CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER”
or

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“FILED UNDER SEAL

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OUTSIDE COUNSEL ONLY - SUBJECT TO PROTECTIVE ORDER”
or

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“FILED UNDER SEAL

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CONFIDENTIAL-OUTSIDE COUNSEL ONLY-SOURCE CODE

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SUBJECT TO PROTECTIVE ORDER”.

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8.

Undertaking. Prior to any disclosure pursuant to ¶¶ 5(j) and 6(i), each

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consultant, investigator, and testifying and consulting expert to whom such disclosure is to be

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made shall execute the Confidentiality Agreement annexed hereto as Exhibit A

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(“Confidentiality A Agreement”). Each person to whom any disclosure is made pursuant to

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¶ 5(e) shall execute the Confidentiality Agreement annexed hereto as Exhibit B

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(“Confidentiality B Agreement”). The Confidentiality Agreements shall be maintained by

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Outside Counsel for PDIC with whom such persons are affiliated or by whom they are retained,

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and such counsel shall promptly provide a copy of each executed Confidentiality A or B

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Agreement to counsel for Microsoft.

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Use of Confidential Information at Depositions. To the extent that

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Confidential Information, as embodied in Protected Documents or otherwise, is used in

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depositions, such Confidential Information shall remain subject to the provisions of this Order,

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along with the transcript pages of the deposition testimony referring to the Confidential

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Information. Additionally, the parties may, within thirty (30) calendar days of receipt of the

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final transcript of a deposition, designate documents, things, materials or information disclosed

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in that deposition as either “CONFIDENTIAL”, “OUTSIDE COUNSEL ONLY” and/or

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“CONFIDENTIAL-OUTSIDE COUNSEL ONLY-SOURCE CODE” as the nature of the

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information involved requires. Absent agreement of the parties to the contrary, until the
PROTECTIVE ORDER - 7
No.

SAVITT BRUCE & WILLEY LLP
1425 Fourth Avenue Suite 800
Seattle, Washington 98101-2272
[phone]

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expiration of such period, all documents, things, materials or information in a deposition shall

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be treated as “OUTSIDE COUNSEL ONLY.” If any party designates testimony to be given at

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a deposition “CONFIDENTIAL”, “OUTSIDE COUNSEL ONLY” and/or “CONFIDENTIAL-

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OUTSIDE COUNSEL ONLY-SOURCE CODE” during the deposition, all persons not

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qualified to receive such information shall leave the deposition for that portion of the

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testimony.

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10.

Disclosure to Author, Recipient, or Producing Party. Nothing herein is

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intended in any way to restrict the ability of counsel to use “CONFIDENTIAL”, “OUTSIDE

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COUNSEL ONLY” and/or “CONFIDENTIAL-OUTSIDE COUNSEL ONLY-SOURCE

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CODE” material in examining or cross-examining any employee, future employee, agent,

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expert or consultant of Microsoft, or any person who authored, received or is a named recipient

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of or otherwise has actual prior knowledge of the “CONFIDENTIAL”, “OUTSIDE COUNSEL

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ONLY” and/or “CONFIDENTIAL-OUTSIDE COUNSEL ONLY-SOURCE CODE” material.

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Source Code. The discovery of Source Code shall be governed by the

provisions set forth in the Protocol for the Discovery of Source Code, attached as Exhibit C.
12.

Reservation of Power by Court. The Court reserves the power and authority

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to remove documents and materials from the scope of this Order if it finds documents or

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materials designated by the parties do not constitute material properly described as protectable

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by Fed. R. Civ. P. 26(c) or this Order.

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13.

Subpoena of Confidential Information. In the event PDIC receives a

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subpoena or other process or order or discovery request to produce any Confidential

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Information or Protected Documents in another, unrelated legal proceeding, from a non-party to

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this miscellaneous action or the underlying litigation, PDIC (i) shall promptly notify counsel

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for Microsoft of the subpoena or other process or order or discovery request, and (ii) shall not

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produce the information until Microsoft has had reasonable time (at least fourteen (14) days) to

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object or take other appropriate steps to protect the information . Microsoft shall have the

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burden of defending against such subpoena or other process or order or discovery request.
PROTECTIVE ORDER - 8
No.

SAVITT BRUCE & WILLEY LLP
1425 Fourth Avenue Suite 800
Seattle, Washington 98101-2272
[phone]

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14.

Continuing Jurisdiction. After termination of the underlying litigation, the

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provisions of this Order shall continue to be binding until further Order of this Court, except

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with respect to those documents and information that become a matter of public record. This

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Court retains and shall have continuing jurisdiction over the parties for enforcement of the

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provisions of this Order following termination of the underlying litigation.

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15.

Duty to Return Documents and Things. Within sixty (60) days after the entry

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of a final non-appealable judgment or order concluding the underlying litigation or the

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complete settlement of all claims asserted against all parties in the underlying litigation, PDIC

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and all other parties to the underlying litigation who received Protected Documents designated

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“CONFIDENTIAL”, “OUTSIDE COUNSEL ONLY” and/or “CONFIDENTIAL-OUTSIDE

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COUNSEL ONLY-SOURCE CODE” shall destroy the Protected Documents or return the

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Protected Documents to the counsel for Microsoft. Outside Counsel for PDIC and any other

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party to the underlying litigation shall provide written certification of compliance with this

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provision to counsel for Microsoft within ninety (90) days after the entry of a final non-

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appealable judgment or order concluding this action or the complete settlement of all claims

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asserted against all parties in the above-captioned action. The party receiving such Protected

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Documents shall not use such Protected Documents or any information contained therein for

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any purpose whatsoever other than the litigation between the parties in the underlying

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litigation, and shall not under any circumstances sell, offer for sale, advertise, or publicize such

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Protected Documents or any information contained therein. Notwithstanding the foregoing,

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counsel of record in this and the underlying litigation may retain their attorney work product

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and all papers filed with any court that include any Confidential Information or Protected

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Documents.

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Scope of Order. This Order shall be binding upon the parties and their

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attorneys, successors, executors, personal representatives, administrators, heirs, legal

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representatives, assigns, subsidiaries, divisions, employees, agents, independent contractors, or

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other persons or organizations over which they have control.
PROTECTIVE ORDER - 9
No.

SAVITT BRUCE & WILLEY LLP
1425 Fourth Avenue Suite 800
Seattle, Washington 98101-2272
[phone]

DATED this ___ day of

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, 2012

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_________________________________________
United States District Judge

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Presented by:

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SAVITT BRUCE & WILLEY LLP

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By:

/s/ Duncan E. Manville
David N. Bruce, WSBA #15237
Duncan E. Manville, WSBA #30304
1425 Fourth Avenue, Suite 800
Seattle, Washington 98101-2272
Telephone: [phone]
Facsimile: 206.749.0600
Email: [e-mail]
Email: [e-mail]

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Attorneys for Princeton Digital Image Corporation

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OF COUNSEL:
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DUANE MORRIS LLP
Gregory M. Luck, P.C.
Thomas W. Sankey, P.C.
Wesley W. Yuan
Diana M. Sangalli
1330 Post Oak Blvd, Suite 800
Houston, Texas 77056-3166
Telephone: [phone]
Facsimile: 713.583.3901
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]

Jeffrey S. Pollack
30 South 17th Street
Philadelphia, PA 19103-4196
Telephone: [phone]
Facsimile: 215.689.4942
Email: [e-mail]

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PROTECTIVE ORDER - 10
No.

SAVITT BRUCE & WILLEY LLP
1425 Fourth Avenue Suite 800
Seattle, Washington 98101-2272
[phone]

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON AT SEATTLE

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PRINCETON DIGITAL IMAGE
CORPORATION,

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Movant,

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NO.
[Original action pending in U.S. District
Court for the Eastern District of Texas,
PDIC v. Canon, Case No. 2:10-cv-29 JRG]

v.
MICROSOFT CORPORATION,

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Respondent.
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EXHIBIT A

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CONFIDENTIALITY AGREEMENT AND UNDERTAKING
FOR EXPERTS RECEIVING “CONFIDENTIAL”, “OUTSIDE COUNSEL ONLY”
OR “CONFIDENTIAL-OUTSIDE COUNSEL ONLY-SOURCE CODE”
INFORMATION

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I, _____________________________, state the following:

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1.

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I have been retained by ________________________ [party] to serve as an

expert in the above-captioned action.

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2.

My address is ______________________________________________

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3.

My present employer is and the address of my present employment is __

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_______________________________________________________________________

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EXHIBIT A - 1
No.

SAVITT BRUCE & WILLEY LLP
1425 Fourth Avenue Suite 800
Seattle, Washington 98101-2272
[phone]

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4.

My present occupation or job description is: _______________________

_______________________________________________________________________
5.

I have received a copy of the Protective Order in this miscellaneous action and

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the underlying litigation and I have carefully read and understand the provisions of this

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Protective Order.

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6.

I will comply with all of the provisions of the Protective Order.

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7.

I will hold in confidence, will not disclose to anyone not qualified under the

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Protective Order, and will use only for purposes of this miscellaneous action and the underlying

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litigation any Confidential Information, including such information designated

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“CONFIDENTIAL”, “OUTSIDE COUNSEL ONLY” and/or “CONFIDENTIAL-OUTSIDE

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COUNSEL ONLY-SOURCE CODE”, that is disclosed to me.

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8.

I will advise any necessary assistant of mine, to the extent permitted under the

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Protective Order, of the confidential nature of any Confidential Information that I disclose to

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such assistant and will be responsible for assuring that such assistant complies with the same

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obligations of confidentiality to which I am hereby agreeing.

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9.

I will destroy or return all Confidential Information that comes into my

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possession, and all notes, documents, or things that I prepare relating thereto, to counsel from

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whom I received the information.

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10.

If I am given access to Source Code designated “CONFIDENTIAL-OUTSIDE

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COUNSEL ONLY-SOURCE CODE,” I agree to abide by all terms of the Protective Order

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concerning such Source Code, including the Protocol for the Discovery of Source Code.

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11.

I hereby submit to the jurisdiction of the United States District Court for the

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Western District of Washington for the purpose of enforcement of this Undertaking pursuant to

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the Protective Order.

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Signature: ____________________________
Printed Name: _________________________
Date: ___________________________

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EXHIBIT A - 2
No.

SAVITT BRUCE & WILLEY LLP
1425 Fourth Avenue Suite 800
Seattle, Washington 98101-2272
[phone]

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON AT SEATTLE

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[Original action pending in U.S. District
Court for the Eastern District of Texas,
PDIC v. Canon, Case No. 2:10-cv-29 JRG]

Movant,

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NO.

PRINCETON DIGITAL IMAGE
CORPORATION,

v.
MICROSOFT CORPORATION,

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Respondent.
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EXHIBIT B

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CONFIDENTIALITY AGREEMENT

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I, ________________ , state the following:

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1.

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My address is _______________________________________________

_______________________________________________________________________
2.

My present employer is and the address of my present employment is___

_______________________________________________________________________
3.

My present occupation or job description is: _________________________

________________________________________________________________________
4.

I have received a copy of the Protective Order in this lawsuit and I have

carefully read and understand the provisions of this Protective Order.
EXHIBIT B - 1
No.

SAVITT BRUCE & WILLEY LLP
1425 Fourth Avenue Suite 800
Seattle, Washington 98101-2272
[phone]

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5.

I will comply with all of the provisions of the Protective Order.

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6.

I attest to my understanding that access to Confidential Information designated

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as “CONFIDENTIAL”, “OUTSIDE COUNSEL ONLY” and/or “CONFIDENTIAL-OUTSIDE

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COUNSEL ONLY-SOURCE CODE” may be provided to me and that such access shall be

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pursuant to the terms and conditions and restrictions of the Protective Order. I agree to be

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bound by the terms of the Protective Order, both with respect to this Court’s powers of

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supervision of this miscellaneous action and contractually to Microsoft, which I acknowledge

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to be an expressly intended beneficiary of the undertakings I give in this Confidentiality

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Agreement.

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7.

I hereby submit to the jurisdiction of the United States District Court for the

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Western District of Washington for the purpose of enforcement of this Undertaking pursuant to

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the Protective Order.

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Signature: ____________________________
Printed Name: _________________________
Date: ________________________________

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EXHIBIT B - 2
No.

SAVITT BRUCE & WILLEY LLP
1425 Fourth Avenue Suite 800
Seattle, Washington 98101-2272
[phone]

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON AT SEATTLE

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PRINCETON DIGITAL IMAGE
CORPORATION,

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Movant,

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NO.
[Original action pending in U.S. District
Court for the Eastern District of Texas,
PDIC v. Canon, Case No. 2:10-cv-29 JRG]

v.
MICROSOFT CORPORATION,

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Respondent.
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EXHIBIT C

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PROTOCOL FOR THE DISCOVERY OF SOURCE CODE

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A.

Definitions
1.

“Source Code”: Any human-readable programming language text that defines

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software, firmware, or electronic hardware descriptions. Text files containing source code shall

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hereinafter be referred to as “Source Code Files.” Source Code Files include, but are not

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limited to, files containing source code in C, C++, Java, assembler, VHDL, Verilog, digital

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signal processor (DSP) and other similar programming languages. Source Code Files further

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include “make” and “build” files, link files, scripts, and other human-readable text files used in

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the generation and/or building of software directly executed on a microprocessor,

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microcontroller, or DSP.
EXHIBIT C - 1
No.

SAVITT BRUCE & WILLEY LLP
1425 Fourth Avenue Suite 800
Seattle, Washington 98101-2272
[phone]

2.

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“CONFIDENTIAL-OUTSIDE COUNSEL ONLY-SOURCE CODE”:

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Confidential Information that (i) may be designated OUTSIDE COUNSEL ONLY under the

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Protective Order and (ii) contains Source Code.

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B.

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Scope
3.

Unless otherwise provided herein, Confidential Information designated

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CONFIDENTIAL-OUTSIDE COUNSEL ONLY-SOURCE CODE will be subject to all of the

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definitions, provisions and restrictions governing Confidential Information designated

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OUTSIDE COUNSEL ONLY under the Protective Order.

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C.

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Access To Designated Source Code Material
4.

Unless otherwise ordered by the Court or permitted in writing by the

11

Designating Party, PDIC may disclose any Confidential Information designated

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“CONFIDENTIAL-OUTSIDE COUNSEL ONLY-SOURCE CODE” (“Designated Source

13

Code Material”) only to the following persons and under the following conditions:

14

a.

Any author, recipient (actual or reasonably believed) of such Designated Source
Code Material;

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b.

Outside Counsel for PDIC;

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c.

Employees of such Outside Counsel (excluding experts, consultants, and
investigators) assigned to and necessary to assist such counsel in the preparation
and trial of the underlying litigation;

d.

Independent consultants, investigators, or experts retained by, or at the direction
of, PDIC or its Outside Counsel to whom disclosure is reasonably necessary for
the underlying litigation and who have signed the Confidentiality Agreement
annexed hereto as Exhibit A;

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e.

This Court and the court presiding over the underlying litigation;

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f.

Any designated arbitrator, mediator, or master who is assigned to hear the
underlying litigation (or any part thereof), and his or her staff, who have signed
the Confidentiality Agreement annexed hereto as Exhibit B; and

g.

Court reporters taking testimony in this miscellaneous action and the underlying
litigation and their necessary stenographic, videographic, and clerical personnel.

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EXHIBIT C - 2
No.

SAVITT BRUCE & WILLEY LLP
1425 Fourth Avenue Suite 800
Seattle, Washington 98101-2272
[phone]

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5.

Where materials are Designated Source Code Material, this section shall apply

2

thereto in addition to the other provisions of this Protective Order. PDIC and Microsoft agree

3

that, at Microsoft’s option, in lieu of or in addition to providing such materials on computer

4

readable storage media, Microsoft may produce such materials by making them available on a

5

computer provided by Microsoft at the offices of its outside counsel, Shook, Hardy & Bacon

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LLP, located in Washington, DC (“the designated facility”). If Microsoft elects to produce

7

such materials at a the designated facility, it shall be responsible for all costs and expenses

8

associated with the designated facility. Such materials shall be made available for inspection

9

by the persons to whom disclosure is authorized pursuant to this Protective Order, at a mutually

10
11

convenient time at the designated facility.
6.

In the event that Microsoft produces the Designated Source Code Material at the

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designated facility on a computer (the “Source Code Computer”), Microsoft shall be obligated

13

to install such tools or programs necessary to review and search the code produced on the

14

platform provided by Microsoft.

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7.

Microsoft shall make available a laser printer with commercially reasonable

16

printing speeds for on-site printing during inspection of Designated Source Code Material.

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PDIC may print out Designated Source Code Material for use by its attorneys and independent

18

consultants, investigators or experts. Each page must be marked with the CONFIDENTIAL-

19

OUTSIDE COUNSEL ONLY-SOURCE CODE designation and production-numbered in a

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manner agreed upon by Microsoft and PDIC.

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8.

In the event that Microsoft elects to produce the Designated Source Code

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Material on a computer readable storage media in lieu of production at the designated facility,

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Microsoft shall produce the Designated Source Code Material in a format that is readable and

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searchable by a standard source code review tool or program. In the event that access to the

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Designated Source Code Material on the computer readable storage medium restricted, such as

26

by encryption or password protection, Microsoft shall separately provide all necessary

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EXHIBIT C - 3
No.

SAVITT BRUCE & WILLEY LLP
1425 Fourth Avenue Suite 800
Seattle, Washington 98101-2272
[phone]

1

information (e.g., decryption key, password) to access and read the Designated Source Code

2

Material at the same time that Microsoft produces the computer readable storage medium.

3

9.

In the event that excerpts of Designated Source Code Material are included in a

4

pleading, exhibit, expert report, discovery document, deposition transcript, or Court document,

5

such documents shall be designated CONFIDENTIAL-OUTSIDE COUNSEL ONLY-

6

SOURCE CODE.

7

10.

Access to and review of the Designated Source Code Material shall be strictly

8

for the purpose of investigating the claims and defenses at issue in the underlying litigation.

9

No person shall review or analyze any Designated Source Code Material for purposes unrelated

10

to this case, nor may any person use any knowledge gained as a result of reviewing Designated

11

Source Code Material in this case in any other pending or future dispute, proceeding, or

12

litigation.

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11.

The United States District Court for the Western District of Washington is

14

responsible for the interpretation and enforcement of this Order’s Protocol for the Discovery of

15

Source Code. All disputes concerning Designated Source Code Material produced under the

16

protection of this Order shall be resolved by the United States District Court for the Western

17

District of Washington. Every individual who receives any Designated Source Code Material

18

agrees to subject himself or herself to the jurisdiction of this Court for the purpose of any

19

proceedings related to performance under, compliance with, or violation of this Order’s

20

Protocol for the Discovery of Source Code.

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12.

The Court reserves the right, upon Motion or upon its own Motion, to amend or

modify this Order’s Protocol for the Discovery of Source Code for good cause shown.

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EXHIBIT C - 4
No.

SAVITT BRUCE & WILLEY LLP
1425 Fourth Avenue Suite 800
Seattle, Washington 98101-2272
[phone]