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Nomadix, Inc., A Delaware Corporation v. Hewlett-Packard Company

February 2, 2011

NOMADIX, INC., A DELAWARE CORPORATION, PLAINTIFF,
v.
HEWLETT-PACKARD COMPANY, A DELAWARE CORPORATION; WAYPORT, INC., A DELAWARE CORPORATION; IBAHN CORPORATION, A DELAWARE CORPORATION; GUEST-TEK INTERACTIVE ENTERTAINMENT LTD., A CANADIAN CORPORATION; GUEST-TEK INTERACTIVE ENTERTAINMENT INC., A CALIFORNIA CORPORATION; LODGENET INTERACTIVE CORPORATION, A DELAWARE CORPORATION; LODGENET STAYONLINE, INC., A DELAWARE CORPORATION; ON COMMAND CORPORATION, A DELAWARE CORPORATION; ARUBA NETWORKS, INC., A DELAWARE CORPORATION; SUPERCLICK, INC., A WASHINGTON CORPORATION; SUPERCLICK NETWORKS, INC., A CANADIAN CORPORATION, DEFENDANTS.



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

SUPPLEMENTAL PROTECTIVE ORDER AND RELATED COUNTERCLAIMS

ORDER AND STATEMENT OF GOOD CAUSE

Each of Plaintiff Nomadix, Inc. and Defendant Aruba Networks, Inc. (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 Aruba's own employees are not permitted to review Aruba'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, 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 according to Option 1 or Option 2:

a. Under Option 1, the Producing Party may produce source code and related files designated "Highly Confidential -- Source Code -- Restricted Access Only" pursuant to this Supplemental Protective Order and the Main Protective Order on an encrypted CD(s), DVD(s), hard drive(s), virtual drive(s) or other media.

b. Under Option 2, all Highly Confidential -- Source Code -- Restricted Access Only Material shall be made available by the Producing Party to the Receiving Party's outside counsel and/or experts in a secure room on a secure computer without Internet access or network access to other computers and with all input/output ports (such as USB) blocked, 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"). However, the Source Code Computer shall be provided equipped with a modern QWERTY keyboard, an optical mouse, mouse pad and two display screens, and sufficient USB or other ports enabled for such configuration. Any Source Code Computer must be equipped with a Windows XP or Windows 7 operating system, at least 100 GB of hard disk storage, at least 2 GB of RAM and a modern processor (e.g., dual-core Intel processor), unless such configuration would somehow interfere with the review of the Highly Confidential -- Source Code -- Restricted Access Only Material, in which case the Parties shall confer regarding a suitable alternative configuration. The Producing Party shall install tools that are sufficient for viewing and searching the code produced, on the platform produced, that are presently used in the ordinary course of the Producing Party's business. The Producing Party shall provide a list of the tools that it intends to install on the Source Code Computer five (5) business days before the Source Code Computer is made available for inspection. The Receiving Party's outside counsel and/or experts may request that software tools for assisting the reviewing and searching of the electronic Highly Confidential -- Source Code -- Restricted Access Only Material (such as Notepad, Ultra Edit Studio, Emacs/Etags (part of the Cygwin tool suite), or other such similar tools for viewing and searching source code) be installed on the secured computer, provided, however, that installation of such other software tools is consistent with all of the protections herein. The Receiving Party must provide the Producing Party with a CD or DVD containing such licensed software tool(s), or else identify web sites from which such software may be legally downloaded, at least ten (10) days in advance of the date upon which the Receiving Party wishes to have the additional software tools available for use on the Source Code Computer. The Producing Party must install any such software (to the extent permitted by law) that the Receiving Party desires. For emphasis, it should be noted that the tools for reviewing Highly Confidential -- Source Code -- Restricted Access Only Material may not be used to circumvent the protections of this Supplemental Protective Order in any way. The Producing Party shall not install on the Source Code Computer any software that could compromise the protected nature of the Receiving Party's work product (such as a keystroke logger). The Parties shall confer in good faith regarding any substantial configuration changes that the Receiving Party believes would aid in its review process consistent with the security provisions herein.

(d) To the extent that total compliance with subparagraphs (a) and (b) would be infeasible or burdensome for a Producing Party with respect to non-source-code documents or information (e.g., with respect to source code management or revision system files), the Producing Party and Receiving Party will discuss solutions whereby the documents or information are produced electronically and reasonably in compliance with subparagraphs (a) and (b). This subparagraph (d) does not exempt production of source code from compliance with subparagraphs (a) and (b).

(e) Subparagraphs (a) through (d) apply only to the extent the source-code document or file related to source code is available to the Producing Party in native format. If the document is not available in native format (because, e.g., it is a printout of source code with handwritten remarks), the document may be produced in accordance with the Parties' agreements, and any orders by this Court, regarding other types of documents, or, at the Producing Party's option, may be made available for inspection at the location at which the Producing Party's electronic Highly Confidential -- Source Code -- Restricted Access Only Material is made available and, in any case, shall be treated under the same security provisions ...


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