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Nomadix, Inc. v. Hewlett-Packard Co.

November 23, 2010

NOMADIX, INC., PLAINTIFF,
v.
HEWLETT-PACKARD COMPANY ET AL., DEFENDANTS. AND RELATED COUNTERCLAIMS



The opinion of the court was delivered by: Honorable Victor B. Kenton

SUPPLEMENTAL PROTECTIVE ORDER

ORDER AND STATEMENT OF GOOD CAUSE

Each of Plaintiff Nomadix, Inc. and Defendant Hewlett-Packard Company (collectively, the "Parties"; individually, a "Party") possesses software source code that may relate to the subject matter of this action that it deems highly confidential, that has not been disseminated to the public at large, that is not readily discoverable by competitors and that has been the subject of extensive efforts to maintain its secrecy, and for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation would be warranted. In addition, the great majority of HP's own employees are not permitted to review HP's source code. The Court has entered a protective order (Docket No. 205) that contemplates that the production of source code may be subject to additional provisions.

Accordingly, based upon the agreement of the Parties and for good cause as recited above and in Docket No. 205,

IT IS HEREBY ORDERED that whenever, in the course of these proceedings, either Party has occasion to disclose software source code, the Parties shall employ the following procedures:

DEFINITIONS

1. The term "Main Protective Order" refers to the protective order entered by the Court as Docket No. 205.

2. The term "Supplemental Protective Order" refers to the instant protective order.

3. All definitions from the Main Protective Order are incorporated herein by reference and are modified only as expressly indicated herein.

SUPPLEMENTAL NATURE

4. This Supplemental Protective Order supplements the Main Protective Order and is to be interpreted in conjunction with the Main Protective Order. Unless this Supplemental Protective Order specifies otherwise, this Supplemental Protective Order does not override or supplant any provisions in the Main Protective Order.

DESIGNATION

5. Any Producing Party may designate Litigation Material as "Highly Confidential -- Source Code -- Restricted Access Only" in accordance with this Supplemental Protective Order.

6. The term "Highly Confidential -- Source Code -- Restricted Access Only Material" refers to any Litigation Material designated "Highly Confidential -- Source Code -- Restricted Access Only"; any copies thereof; and the information contained in such Litigation Material or such copies, including summaries of such information. The terms "Protected Material" and "Protected Technical Material" from the Main Protective Order are hereby modified to include Highly Confidential -- Source Code -- Restricted Access Only Material and all provisions in the Main Protective Order referring to "Protected Material" and/or "Protected Technical Material" are hereby updated accordingly as between the Parties.

Designation Procedure

7. Paragraphs 10 through 13 of the Main Protective Order apply equally and analogously to Highly Confidential -- Source Code -- Restricted Access Only Material and designations of Litigation Material as "Highly Confidential -- Source Code -- Restricted Access Only." Paragraph 14 of the Main Protective Order is amended as follows (insertions underlined):

14. From the time of any deposition through the end of thirty-one (31) business days after a final transcript of the deposition is made available by a reporter, the deposition (including exhibits) and any transcript or recording thereof shall be treated as Highly Confidential -- Attorneys' Eyes Only Material, unless the contents of Highly Confidential -- Source Code -- Restricted Access Only Material were explicitly discussed during the deposition, in which case the deposition (including exhibits) and any transcript thereof shall be treated as Highly Confidential -- Source Code -- Restricted Access Only Material. At the end of the thirty-one (31) business days, the deposition (including exhibits) and any transcript or recording thereof shall be treated as public information (with no confidentiality designation) except to the extent designated pursuant to paragraph 12.

Designation Qualifications

8. Litigation Material may be designated "Highly Confidential -- Source Code -- Restricted Access Only" if it is or contains: (a) non-public source code or (b) public source code used in a Producing Party's product(s)- whether commercially released or developmental-and if the fact that such public source code is used in the Producing Party's product is (i) not publicly known or (ii) a trade secret.

DISCLOSURE

9. A Receiving Party may disclose Highly Confidential -- Source Code -- Restricted Access Only Material only to the persons or entities identified in paragraphs 17(a), 17(c), and 17(f) through 17(k) of the Main Protective Order, and only in accordance with the supplemental security provisions of paragraphs 11 through 21 of this Supplemental Protective Order. A Receiving Party may disclose Highly Confidential -- Source Code -- Restricted Access Only Material to an individual identified pursuant to paragraph 17(c) of the Main Protective Order only after serving on the other Party's counsel a copy of the confidentiality agreement attached to this Supplemental Protective Order as Exhibit B signed by such individual and only after otherwise complying with paragraph 17(c) of the Main Protective Order.

FORMAT OF PRODUCTION

10. For source code and files related to source code (e.g., configuration files, Makefiles, files storing input or output related to source code and/or the program that the source code underlies, files related to source code management and/or revision systems, read me files, etc.) that are to be produced:

(a) The Producing Party shall produce the source code and related files in native format and broken out by version number and, if applicable, product name and/or product model number. The Producing Party shall identify or supply software and/or programming tools that can be used to view and compile the source code.

(b) The production of a given version of source code and related files shall preserve all file names, directory names and directory structures.

(c) The Producing Party may make Highly Confidential -- Source Code -- Restricted Access Only Material available ...


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