The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
Case No. 5:22-cv-00227-D
PEN-TECH ASSOCIATES, INC., )
)
Plaintiff, )
)
V. )
)
DANIEL P. KANG a/k/a DANIEL ) STIPULATED PROTECTIVE ORDER
CHUNG; MICHAEL KIM; )
THE GAME LAB, LLC; )
HUNG NGUYEN a/k/a MICHAEL )
NGUYEN; MATEO PEREZ; and )
4D AMUSEMENT, LLC, )
)
Defendants. )
STIPULATED PROTECTIVE ORDER
Pursuant to Fed. R. Civ. P. 26(c)(1), and upon stipulation and for good cause shown, it is
hereby ORDERED that:
1. Plaintiff Pen-Tech Associates, Inc. (“Pen-Tech”), Defendant Daniel Chung
(“Chung”), Defendant Mateo Perez (“Perez”), Defendant 4D Amusement, LLC (“4D
Amusement’), and Defendant Hung Nguyen a/k/a Michael Nguyen (“Nguyen”) (collectively, the
Parties”), in order to protect confidential business, proprietary, financial, personal and/or trade
secret information, while consistent with the public’s right to access the Court’s records and
processes, stipulate that the following terms and conditions shall govern the disclosure and use of
confidential information in this case (the “Protective Order”).
2. This Protective Order, which includes the incorporation of the applicable sections
of the CM/ECF Policy Manual and Local Rule 79.2, shall govern the handling of all Documents
provided to a Party by a Subject Person. In the event of a conflict between this Protective Order
on the one hand and either the CM/ECF Policy Manual or Local Rule 79.2 on the other, the latter
shall control. This Protective Order also shall govern the handling of any and all Documents
previously exchanged between the Parties, to the extent a Producing Party designated the
previously exchanged Documents as “Confidential” or “Highly Confidential — Attorneys’ Eyes
Only” relating to the underlying claims and defenses at issue in this case, and supersedes any prior
confidentiality agreements concerning the exchange of such Documents.
3. As used in this Order, “Subject Person” means any Party, Producing Party or any
other entity or person making itself subject to this Order by signing an Acknowledgment in the
form attached here as Appendix A.
4. As used in this Protective Order, ““Document” shall include the documents,
information and materials listed in Fed. R. Civ. P. 34(a)(1), including any documents or
electronically stored information—including writings, drawings, graphs, charts, photographs,
sound recordings, images, and other data or data compilations—stored in any medium from which
information can be obtained either directly or, if necessary, after translation by the responding
party into a reasonably usable form, as well as any responses to written discovery and any
deposition testimony.
5. As used in this Protective Order, “Producing Party” means any Party or non-party
that discloses or produces any Document in this case, including any Subject Person.
6. As used in this Protective Order “Outside Counsel” means counsel who appear on
the pleaclings as counsel for a Party, Producing Party or Subject Person and any partners,
associates, and staff of such counsel to whom it is reasonably necessary to disclose the
information for this litigation.
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7. A Producing Party disclosing Documents in this action may designate all or a
portion of those Documents as “Confidential” or “Highly Confidential- Attorneys’ Eyes Only.”
Such a designation shall constitute a representation by the Producing Party that it believes in good
faith that the Document so designated contains trade secret or other confidential research,
development or commercial information, not generally known to the public whose unrestricted
disclosure could cause competitive or other injury, or annoyance, embarrassment or oppression to
the disclosing Producing Party, or other information protected from public disclosure by statute or
regulation or otherwise under applicable law. Producing Parties shall reasonably limit in scope all
“Confidential” and “Highly Confidential —Attorneys’ Eyes Only” designations.
8. A Producing Party designating Documents as “Confidential” or “Highly
Confidential — Attorneys’ Eyes Only” shall do so in any way reasonably calculated to advise any
other Subject Person of that designation, including but not limited to by:
a) During a deposition, indicating on the record that certain testimony is
designated as “Confidential” or “Highly Confidential —Attorneys’ Eyes
Only;”
b) After a deposition, notifying all parties in writing no later than fourteen (14)
days from the date of delivery of the transcript by the reporter that certain
testimony is designated as “Confidential” or “Highly Confidential —
Attorneys’ Eyes Only;”
c) Affixing appropriate labels to such designated Documents; or
d) Designating specific Documents as “Confidential” or “Highly Confidential
—Attorneys’ Eyes Only” in correspondence provided to the Parties.
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For a period of fourteen (14) days from the date of delivery by the reporter, Subject
Persons shall treat each deposition transcript as “Highly Confidential —Attorneys’ Eyes Only” in
its entirety.
9. Subject Persons receiving “Confidential” Documents may disclose these
Documents only to:
a) Outside Counsel and in-house lawyers, including secretaries, paralegals and
document clerks;
b) Each Party, and any current or former director, officer, member, partner,
employee, agent, representative or affiliate of a Party that is involved in this
matter as part of his or her responsibilities in the ordinary course of business
or who is requested by that Party or any of its attorneys to provide work or
services related to this case;
Cc) Insurers, accountants, auditors, independent consultants or regulators to
whom a Party may be required to respond or report in their ordinary course
of business regarding the case or proceedings arising out of or related to the
case;
d) Experts specially retained by a Party or its counsel of record for the purpose
of assisting in this case, such as marketing experts, accountants, economists
and damages experts, including their staff, but only to the extent that, and
for the time during which, such disclosure becomes necessary for such
expert to perform his or her assigned tasks and to be disclosed as required
with the standing Scheduling Order and in accordance with Fed. R. Civ. P.
26(a)(2);
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e) Any witness in this case, and his or her counsel, but only for the witness’s
review in preparation for or during his or her deposition or in preparation
for his or her testimony in this case;
f) Mediators or similar outside parties and their staffs enlisted by the Parties to
assist in the resolution of the claims and defenses of the Parties, subject to
their agreement to maintain confidentiality to the same degree as required
by this Protective Order;
g) Litigation support vendors retained by counsel for such functions as
document collection, processing, management, coding, hosting, review or
storage and photocopying, scanning, stenography, videography, imaging or
preparation of graphics, demonstratives or other exhibits for deposition, trial
or other court proceedings, subject to their agreement to maintain
confidentiality to the same degree as required by this Protective Order;
h) Privately retained court reporters, videographers or transcribers employed in
connection with this case or proceedings arising out of or related to this
case, subject to their agreement to maintain confidentiality to the same
degree as required by this Protective Order;
i) The Court and its staff;
j) Any person to whom the information justifying the Document’s designation
as “Confidential” has previously been disclosed by the disclosing Subject
Person; and
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k) Any other person for whom the Subject Person receiving the information
can show good cause, but only upon order of the Court or with advance
written permission of the Producing Party.
Notwithstanding the foregoing, this Order will not bar or otherwise restrict Outside
Counsel from rendering advice to his or her client with respect to this matter or from generally
referring to or relying upon “Confidential” information in rendering such advice.
10. Subject Persons receiving “Highly Confidential Attorneys’ Eyes Only”
Documents may disclose these Documents only to persons identified in Paragraph 9(a) (but not
including in-house lawyers or their secretaries, paralegals and document clerks), (c), (d) and (f) —
(k) above. Notwithstanding the foregoing, this Protective Order will not bar or otherwise restrict
Outside Counsel from rendering advice to his or her client with respect to this matter or from
generally referring to or relying upon “Highly Confidential —Attorneys’ Eyes Only” information in
rendering such advice.
11. Subject Persons receiving Documents designated as “Confidential” or “Highly
Confidential — Attorneys’ Eyes Only” shall:
a) Not disclose such Documents except as permitted under this Order;
b) Use those Documents only in this case or in any effort by the Parties to
obtain insurance or indemnities related to this case; and
c) Maintain those Documents in a manner reasonably designed to prevent their
unauthorized disclosure.
12. All Subject Persons receiving any Document designated as “Confidential” or
“Highly Confidential —Attorneys’ Eyes Only” under Paragraphs 9(c)-(e), (g), and (k) shall sign an
Acknowledgment in the form attached here as Appendix A. Each Subject Person disclosing
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Documents under Paragraphs 9 and 10 shall maintain signed copies of all Acknowledgments
obtained by that disclosing Subject Person. In the event a Party believes, in good faith, that there
has been a violation of this Order, that Party shall notify the opposing Party in writing of such
alleged violation and may demand a copy of the executed Acknowledgment of all persons
connected to the suspected violation, which copy shall be produced within seven (7) days of the
demand.
13. “Confidential” and “Highly Confidential —Attorneys’ Eyes Only” information does
not include, and this Protective Order does not apply to, information that has been disclosed by
persons and through methods authorized by the information owner to the public or third persons in
a manner making such information no longer confidential other than by means of this Protective
Order.
14. Nothing in this Order shall prevent the disclosure of Documents designated as
“Confidential” or “Highly Confidential —Attorneys’ Eyes Only:”
a) by the Producing Party so designating such Documents;
b) by Subject Persons under terms consented to by the Producing Party
designating the Document; or
c) by Order of the Court, after notice to all affected parties.
15. | A Subject Person inadvertently disclosing “Confidential” or “Highly Confidential —
Attorneys’ Eyes Only” Documents without the proper designation may, within fourteen (14) days
of learning of such disclosure, substitute properly designated Documents for those inadvertently
disclosed without designation. A Subject Person receiving subsequently designated Documents
shall within fourteen (14) days of the receipt of such Documents:
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a) Give notice to each Subject Person to whom the receiving Subject Person
disclosed undesignated Documents;
b) Attempt to retrieve all previously disclosed copies of such Documents; and
c) Substitute the properly designated Documents.
The inadvertent production of “Confidential” or “Highly Confidential —Attorneys’ Eyes
Only” information without a designation does not constitute a waiver of the right to claim a
“Confidential” or “Highly Confidential Attorneys’ Eyes Only” designation.
16. | Any Subject Person who receives from persons not subject to this Order a request
or demand otherwise effective under state or federal law for Documents designated as
“Confidential” or “Highly Confidential —Attorneys’ Eyes Only” by other Subject Persons shall:
a) Give written notice to the designating Subject Person and to all Parties
within fourteen (14) days of receiving the request or demand; and
b) Withhold production of the Documents for as long as permitted by law or
until authorized to disclose the Documents by the Court or designating
Subject Party.
Nothing in this Order, however, shall prevent any Subject Person from, after providing the
written notice described in this paragraph, disclosing any such Document by the date indicated by
an administrative or court order, demand, summons, subpoena or other request or demand from
any governmental agency or grand jury.
17. A Party shall not be obligated to challenge the designation of documents as
“Confidential” or “Highly Confidential —Attorneys’ Eyes Only” by another Subject Person at the
time the Documents are designated, and a Party’s failure to challenge the designation at that time
shall not preclude a later challenge. Upon a challenge to an assertion of such designation of
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confidentiality by a Party, the Subject Persons shall try first to resolve such dispute in good faith
and on an informal basis. If the Subject Persons cannot resolve their dispute informally, the
Subject Person seeking the confidentiality protection shall have the burden of applying to the
Court for a protective order specific to those Documents. The Parties reserve the right to dispute
whether the attorney-client privilege, work-product doctrine or any other privilege or immunity
apply to any documents or information provided by the designating Subject Person and this
Protective Order does not waive or limit any right that the receiving Party may have to seek such
documents or information.
18. In the interests of streamlining discovery and avoiding unnecessary conflicts
between the Parties, if during the course of this case, a Subject Person produces or discloses a
Document that the Subject Person claims to be privileged or protected from discovery by the
attorney work-product doctrine, the attorney-client privilege or any other privilege or protection,
the producing Subject Person will give notice thereof to the receiving Subject Person in writing.
Upon receipt of such notice, the receiving Subject Person shall not read or review the contents of
the Document that is subject to the notice. Within seven (7) days of receiving such notice, the
Document in question will be returned to the producing Subject Person or the receiving Subject
Person will certify that any and all copies of the Document have been retrieved and destroyed, and
the receiving Subject Person will certify that all portions of any notes and work product quoting or
referring to the Document have been deleted or destroyed. If the receiving Subject Person has
disclosed the information to others before being notified of the claim of privilege or protection, the
receiving Subject Person must take reasonable steps to retrieve and return or destroy the disclosed
information. The receiving Subject Person upon receiving a privilege log identifying the
document or information remains free to challenge any claim of privilege or protection, but shall
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not make any claim that the production of the document caused or resulted in a waiver of any
privilege or protection. Moreover, absent a ruling that the Document at issue is not privileged or
protected, a receiving Subject Person may not disclose nor make any use whatsoever of the
Document or any information disclosed in or derived from the Document at issue. In the interests
of effectuating this Protective Order and protecting the efficient process of discovery in this case,
Documents produced during the course of this case which are claimed to be privileged or
protected and sought to be reclaimed by a Subject Person under this paragraph shall not be used as
grounds by any non-party to argue that any waiver of privilege or protection has occurred by
virtue of any production. Any analyses, memoranda or notes which were created based upon such
inadvertently-produced information shall immediately be treated in conformance with the
protected nature of the information.
19. Neither agreeing nor complying with this Order, nor producing or receiving any
Document designated “Confidential” or “Highly Confidential —Attorneys’ Eyes Only” shall
prejudice in any way the rights of:
a) Any Subject Person to object to the production of documents it considers
privileged or otherwise not subject to discovery;
b) Any Party to object to the authenticity or admissibility into evidence of any
documents, testimony or other evidence subject to this Protective Order,
c) Any Subject Person to seek a determination by the Court of whether any
Documents designated “Confidential” or “Highly Confidential —Attorneys’
Eyes Only” should be subject to the terms of this Protective Order;
d) Any Party to object to the production of documents or information;
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e) Any Party to move for an order compelling the production of documents or
information; or
f) Any Subject Person to move for modification of this Protective Order.
20. Designated Material may be included, attached or referred to in pleadings, motions,
briefs and other documents filed with the Court only in accordance with the Federal Rules of Civil
Procedure and the Local Rules. Specifically, before filing any information that has been
designated "CONFIDENTIAL” or “Highly Confidential —Attorneys’ Eyes Only” with the Court,
or any pleadings, motions or other papers that disclose any such information, counsel shall confer
with counsel for the Party that produced the information so designated about how it should be
filed. If the Party that produced the information so designated desires that the materials be filed
under seal, then the filing Party shall file the materials in accordance with Local Civil Rule 79.2,
EDNC, with notice served upon the producing party. The filing of the materials under seal shall
not be binding on the Court, however. Within 10 days of service of such notice, the party desiring
that the materials be maintained under seal shall file with the Court a Motion to Seal and
supporting memorandum of law specifying the interests which would be served by restricting
public access to the information. The Party that initially filed the materials need not file any such
Motion to Seal or otherwise defend another Party's desire that the materials remain sealed. The
Court will grant the Motion to Seal only after providing adequate notice to the public and
opportunity for interested parties to object, after carefully weighing the interests advanced by the
movant and those interests favoring public access to judicial documents and records, and upon
finding that the interests advanced by the movant override any common law or constitutional right
of public access which may attach to the information. Documents submitted under seal in
accordance with this paragraph will remain under seal pending the Court's ruling. If the Party
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desiring that the information be maintained under seal does not timely file a Motion to Seal, then
the materials will be deemed unsealed, without need for order of the Court.
21. Sealed Documents. Except for motions filed under seal in accordance with
Section V.G.1.(f), each time a party seeks to file under seal, the party must accompany the request
with a motion to seal. The motion to seal may be filed without a supporting memorandum only if
the filing party can cite a statute, rule, standing order or court order that requires the filing to be
sealed. Absent such authority, the filing party must submit a supporting memorandum that
specifies:
(1) The exact document or item, or portions thereof, for which the filing under seal
is requested;
(ii) | Howsuch request to seal overcomes the common law or the First Amendment
presumption to access:
(iii) | The specific qualities of the material at issue which justify sealing such
material, taking into account the balance of competing interest in access;
(iv) The reasons why alternatives to sealing are inadequate; and
(v) Whether there is consent to the motion.
22. Nothing in this Order shall prevent a Subject Person from using its own Documents
designated “Confidential” or “Highly Confidential —Attorneys’ Eyes Only” for any purpose.
Nothing in this Order shall be construed to prevent a Subject Person who has designated
Documents as “Confidential” or “Highly Confidential —Attorneys’ Eyes Only” from agreeing to
release any such documents, information or materials from the requirements of this Order, and if it
decides to do so, it shall notify the other Parties in writing. A Subject Person’s rights pursuant to
this Order may only be waived by a writing clearly evidencing its intent to waive such rights.
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23. Information Designated Restricted Confidential - Source Code. Notwithstanding
anything in this Order to the contrary, this Paragraph 22 shall govern the Parties’ rights, duties and
obligations as it pertains to source code.
a) The CONFIDENTIAL OUTSIDE COUNSEL ONLY - SOURCE CODE
designation is reserved for CONFIDENTIAL INFORMATION that
contains or describes a Party’s Source Code. The following conditions shall
govern the production, review and use of Source Code or design
documentation information, to the extent production of Source Code
becomes necessary to the prosecution or defense of the case.
b) Nothing in this Order shall be construed as a representation or
admission that Source Code is properly discoverable in this action, or to
obligate any Party to produce Source Code.
c) All such Source Code, and any other Protected Information designated as
“CONFIDENTIAL OUTSIDE COUNSEL ONLY - SOURCE CODE”
(or marked “ATTORNEYS’ EYES ONLY - SOURCE CODE,”
“CONFIDENTIAL - SOURCE CODE,” or “RESTRICTED
CONFIDENTIAL - SOURCE CODE”) shall be subject to the following
provisions:
i. Source Code, to the extent any Producing Party provides any such
information, shall ONLY be made available for inspection, not
produced except as provided for below, and shall be made
available in searchable electronic format at one of the following
locations chosen at the sole discretion of the Producing Party: (1)
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the offices of any of the Producing Party’s Outside Counsel , as
selected by the Producing Party or (2) a single, third-party site
(e.g., an escrow company) . Source Code will be loaded on a
single non-networked, password-protected computer, without
Internet access, on which all access ports may be disabled,
maintained in a secure, locked area as necessary and appropriate to
prevent and protect against any unauthorized copying,
transmission, removal or other transfer of any Source Code outside
or away from the computer on which the Source Code is provided
for inspection (the “Source Code Computer” in the “Source Code
Review Room”). Use or possession of any input/output device
(e.g., USB memory stick, cameras or any camera-enabled device,
CDs, DVDs, floppy disk, portable hard drive, laptop, or any drives
of any kind), recordable media, or recording device (e.g., sound
recorder, cellular telephone, tablet computer, etc.) is prohibited
while accessing the computer containing the Source Code. The
Receiving Party’s outside counsel and/or experts may not copy the
Source Code into the notes. All persons entering the room
containing Source Code must agree to submit to reasonable
security measures to insure they are not carrying any prohibited
items before they are given access to the locked room. After the
Producing Party has notified the Receiving Party that Source Code
is available for review, but not prior to such notification, the
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computer containing Source Code will be made available for
inspection during regular business hours (excluding holidays).
Prior to the first inspection of any requested Source Code, the
Receiving Party shall provide 3 business days (i.e., 72 hours)
notice of the Source Code that it wishes to inspect. The Receiving
Party shall provide 3 business days (i.e., 72 hours) notice prior to
any inspection period, with a reasonable estimate of the number of
consecutive days needed for such inspection period. The Parties
shall work together in good faith to accommodate each other’s
logistics needs in arranging the inspection period or periods.
il. The Receiving Party's Outside Counsel and/or experts may request
that commercially available licensed software tools for viewing and
searching Source Code be installed on the secured computer,
provided, however, that (a) the Receiving Party possesses an
appropriate license to such software tools; (b) the Producing Party
approves such software tools; and (c) such other software tools are
reasonably necessary for the Receiving Party to perform its review
of the Source Code consistent with all of the protections herein. The
Receiving Party may provide the Producing Party with the CD or
DVD or weblink for download, and ensure that (i) there is no cost
associated with the software tool to the Producing Party; (ii) such
software is commercially available and properly licensed by the
Receiving Party; and (iii) the installation does not raise policy or
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technical issue(s) containing such software tool(s) at least fourteen
(14) days in advance of the inspection, and the Producing Party shall
install such software tools as soon as reasonably possible, but no
later than fourteen (14) days after receiving such software tools. In
no event shall the Receiving Party use any compilers, interpreters or
simulators in connection with the Producing Party’s Source Code.
Should the Receiving Party wish that the Producing Party assist in
acquiring the license for the software tools and in installing them,
the Receiving Party shall reimburse the Producing Party all costs
associated with the license acquisition and with the installation.
ill. The Receiving Party’s Outside Counsel and/or expert shall be
entitled to take notes relating to the Source Code but may not copy
any portion of the Source Code into the notes and may not take
such notes electronically or on any electronic device. Each page of
any such notes containing Source Code information (and any
additional notes, analyses, or descriptions relating thereto) must be
marked as “CONFIDENTIAL OUTSIDE COUNSEL ONLY —
SOURCE CODE.” 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. No electronic or physical
copies of such notes may be made. Further, no other written or
electronic record of the Source Code is permitted except as
otherwise provided herein.
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iv. No person shall copy, e-mail, transmit, upload, download, print,
photograph or otherwise duplicate any portion of the designated
Source Code, except as otherwise permitted herein and except that
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 to prepare court filings or pleadings or other
papers (including deposition exhibits and a testifying expert’s expert
report and demonstratives) for use in this action. In no event may
the Receiving Party request the printing of more than 10 consecutive
pages of a continuous block of Source Code, or an aggregate total of
more than 50 pages, of Source Code during this case without good
cause shown. To the extent applicable, printouts shall be in color.
Upon the printing any such portions of Source Code, the printed
pages shall be kept by the Producing Party. Within seven (7) days
or such additional time as necessary due to volume requested, the
Producing Party will provide the requested material bearing Bates
numbers and the legend “CONFIDENTIAL OUTSIDE COUNSEL
ONLY - 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 inspecting Party’s
request, up to three additional sets (or subsets) of printed Source
Code may be requested and provided by the Producing Party ina
timely fashion. The Receiving Party shall not print Source Code in
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order to review blocks of Source Code elsewhere in the first
instance, i.e., as an alternative to reviewing that Source Code
electronically on the Source Code Computer, as the parties
acknowledge and agree that the purpose of the protections herein
would be frustrated by printing portions of Source Code for review
and analysis elsewhere, and that printing is permitted only when
necessary to prepare SOURCE CODE DOCUMENTS as discussed
in Paragraph XIII below.
v. 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 seven (7) days. If five (5) days 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), either Party shall be entitled, but not required, to
seek a Court resolution of whether the printed Source Code in
question is reasonably necessary to any case preparation activity.
Contested Source Code printouts need not be produced to the
requesting Party but shall remain available for inspection at the
chosen location until the matter is resolved by the Court.
Vi. Any printed pages of Source Code, and any other documents or
things reflecting Source Code that have been designated by the
Producing Party as “CONFIDENTIAL OUTSIDE COUNSEL
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ONLY - 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.
vii. | Any paper copies designated “CONFIDENTIAL OUTSIDE
COUNSEL ONLY - 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. Any
such paper copies shall be maintained at all times in secure
location under the direct control of counsel responsible for
maintaining the security and confidentiality of the designated
materials. The Source Code shall be stored in a locked room or
cabinet at all times when it is not in use.
viii. 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 forty-eight (48) hours prior to inspection.
Such identification shall be in addition to any other disclosure
required under this Order. If any litigation counsel is
accompanying the persons who will view the Source Code, the
name of such counsel shall be provided sufficiently in advance
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(e.g., twenty-four (24) hours before arrival) to allow adequate time
to alert the personnel at the location where the source code will be
made available. The Producing 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. Proper identification
of all authorized persons shall be provided prior to any access to
the secure room or the computer containing Source Code. Proper
identification requires showing, at a minimum, a photo
identification card sanctioned by the government of any State of
the United States, by the government of the United States, or by
the nation state of the authorized person's current citizenship.
Access to the Source Code Review Room or the Source Code
Computer may be denied, at the discretion of the Producing Party,
to any individual who fails to provide proper identification. The
Producing Party shall be entitled to have a person observe all
entrances and exits from the Source Code Review Room, to
visually monitor the activities of the Receiving Party’s
representative during any Source Code review, and the Receiving
Party shall be entitled to a copy of the log on one (1) business day
notice. Such person may not, without permission, observe what the
Receiving Party’s representative writes, types or says during the
Source Code review. No more than a total of ten (10) individuals
identified by the Receiving Party shall have access to the Source
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Code, including printed portions of Source Code (except insofar as
such code appears in any court filing or expert report).
ix. 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 and the Receiving Party has no expectation of
privacy in any materials left without a prior agreement to that
effect.
Xx. 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 except as otherwise provided herein. The
Receiving Party will not transmit any portion of the Source Code
in any way from the location of the Source Code inspection.
Xl. Only the following individuals shall have access to
“CONFIDENTIAL OUTSIDE COUNSEL ONLY - SOURCE
CODE” materials, absent the express written consent of the
Producing Party or further court order:
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(1) Outside litigation counsel of record for the Receiving Party,
and supporting personnel employed in the law firm(s) of
outside litigation counsel of record, such as attorneys,
paralegals, legal translators, legal secretaries, legal clerks
and shorthand reporters working at the direction of such
counsel to the extent that such person is not involved in
competitive decision-making on behalf of a Party or a
competitor of a Party, as defined by U.S. Steel v. United
States, 730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984);
(2) Up to three (3) outside experts and their necessary support
personnel, subject to the provisions of paragraphs 8 herein,
each of whom has signed the form attached hereto as
Attachment A and specifically identified as eligible to
access Source Code.
(3) The Court, its technical advisor (if one is appointed), its
personnel and stenographic reporters (under seal or with
other suitable precautions determined by the Court), and
the jury. 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;
(4) Any mediator who is assigned to hear this matter, and his
or her staff, subject to their agreement to maintain
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confidentiality to the same degree as required by this
Protective Order;
(5) While testifying at deposition or trial in this action only: (1)
any current officer, director or employee of the Producing
Party; and/or (ii) any person designated by the Producing
Party to provide testimony pursuant to Fed. R. Civ. P.
30(b)(6). 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; and
(6) Any other person with the prior written consent of the
Producing Party.
xii. | 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 g above. The log shall include the names of the
recipients and reviewers of copies and locations where the copies
are stored and shall be provided to the Producing Party on two (2)
business day notice. Upon request by the Producing Party, the
Receiving Party shall provide reasonable assurances and/or
descriptions of the security measures employed by the Receiving
Party and/or qualified person that receives a copy of any portion of
the Source Code;
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xiii. A Receiving Party may include only excerpts of Source Code in a
pleading, exhibit, expert report, discovery document, other Court
document, or any drafts of these documents (“Source Code
Documents”); each excerpt of Source Code quoted in a Source
Code Document shall be insubstantial when compared to the entire
Source Code produced by the Producing Party — as an example,
excerpts should be limited to lines in length as opposed to pages.
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 whenever possible. If a Receiving Party includes
any portion of Source Code in a Court filing, access to the
Receiving Party’s submission, communication, and/or disclosure of
electronic files or other materials containing any portion of the
Source Code (paper or electronic) shall at all times be limited solely
to individuals who are expressly authorized to view Source Code
under the provisions of this Order. Where the Producing Party has
provided the express written permission required under this
provision for a Receiving Party to create electronic copies of
Source Code, the Receiving Party shall maintain a log of all such
electronic copies of any portion of Source Code in its possession or
in the possession of its retained consultants, including the names of
the reviewers and/or recipients of any such electronic copies, and
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the locations and manner in which the electronic copies are stored.
Additionally, any such electronic copies must be labeled
“CONFIDENTIAL - OUTSIDE COUNSEL ONLY - SOURCE
CODE” as provided for in this Order.
xiv. For depositions, the Receiving Party shall not bring copies of any
printed Source Code. Rather, at least three (3) business days before
the date of the deposition, the Receiving Party shall notify the
Producing Party about the specific portions of Source Code it
wishes to use at the deposition, and the Producing Party shall bring
printed copies of those portions to the deposition for use by the
Receiving Party. All paper copies of Source Code brought to the
deposition shall remain with the Producing Counsel’s Outside
Counsel for secure destruction in a timely manner following the
deposition.
XV. 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.
xvi. 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 and copies of Source Code shall be
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removed by Outside Counsel for the Producing Party for
destruction.
xvii. The Receiving Party’s Outside Counsel may only disclose a copy
of the Source Code to individuals specified in Paragraph k above
(e.g., Source Code may not be disclosed to in-house counsel).
24. After termination of this case, including any and all appeals, the provisions of this
Protective Order shall continue to be binding, except with respect to those documents and
information that become a matter of public record. The Court retains and shall have continuing
jurisdiction over the parties and recipients of “Confidential” and “Highly Confidential —Attorneys’
Eyes Only” information for enforcement of the provisions of this Protective Order following the
termination of this case. Within sixty (60) days of the final conclusion of this case, including any
and all appeals, the Parties shall make reasonable efforts to either:
a) Assemble and return to the Subject Person providing information
designated as “Confidential” or “Highly Confidential —Attorneys’ Eyes
Only” all such Documents in his or her possession; or
b) Destroy all such Documents in his or her possession, delivering to the
Subject Person providing such Documents a written certificate that he or
she has complied with this Protective Order, if requested by the Subject
Person.
Notwithstanding the foregoing, at the close of the case, the Parties and their Outside
Counsel may (1) retain one set of designated materials to document the substance and disposition
of the claims and defenses in this case, and (2) retain designated materials to the limited extent
required by their internal document retention policies and procedures and/or their regulatory
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obligations, so long as such designated materials are held in the strictest confidence and remain
subject to the provisions of this Protective Order. Notwithstanding the proceeding sentence, all
Source Code (including all paper copies of source code print outs) must be returned to the Subject
Person or destroyed consistent with the requirements of paragraph 23(a)-(b) above.
25. The Parties may amend this Protective Order by mutual agreement in a writing
signed by an authorized representative of each Party and approved by the Court.
26. The notices required in this Order shall be directed to the Subject Person’s counsel
of record or, if none, that Subject Person’s specifically designated representative.
SO ORDERED, this \"%*_ day of May, 2023.
United States Magistrate Judge
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