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X6d Limited v. Li-Tek Corporation Company

February 4, 2011

X6D LIMITED; X6D USA INC.; AND XPAND, INC. PLAINTIFF,
v.
LI-TEK CORPORATION COMPANY, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Hon. Patrick J. Walsh

AMENDED PROTECTIVE ORDER

Good cause appearing, the Court hereby Orders:

Proceedings and Information Governed.

1. This Order ("Protective Order") is made under Fed. R. Civ. P. 26(c) and governs any Discovery Materials designated as Confidential, Attorneys' Eyes Only or Restricted Attorneys' Eyes Only, as those terms are defined below, furnished by Plaintiff or any Defendant (each hereinafter a "Party") to any other Party in the above styled and numbered cause (the "Litigation"). This Protective Order further applies to any non-party ("Third Party") who produces documents or things in connection with this Litigation regardless of whether such production is made pursuant to subpoena.

Definitions.

2. (a) "Discovery Materials" means anything produced or provided by any Party to another Party or by any Third Party to a Party in this Litigation, including, but not limited to, documents, things, deposition testimony, responses to interrogatories, responses to requests for admission, responses to requests for production of documents, deposition transcripts and videos, deposition exhibits, and other writings or things produced, given, served, or filed in this Litigation, as well as any copies, excerpts, abstracts, analyses, summaries, descriptions, or other forms of recorded information containing, reflecting, or disclosing such information.

(b) "Producing Party" or "Designating Party" means a Party to this Litigation, or any Third Party, on behalf of which documents, things, or information are furnished, produced, or disclosed, whether voluntarily or in response to a request for discovery or by court order, during the course of this Litigation.

(c) "Receiving Party" means a Party to which documents, things, or information are furnished, disclosed, or produced during the course of this Litigation.

(d) "Outside Counsel" means the outside counsel of record for each Party, including all attorneys, staff and clerical support personnel affiliated with or employed by such outside counsel, as well as temporary personnel retained by such law firm(s) to perform legal or clerical duties, or to provide logistical litigation support.

(e) "In-House Counsel" means an attorney who is an employee in the legal department of a Party whose responsibilities include overseeing this case.

(f) "Party" means every party to this action and every director, officer, and employee of every party to this action.

(g) A designation of "Confidential" shall mean that the Discovery Material so designated includes, discloses, or comprises, in whole or in part, trade secrets or commercial information that is not publicly known and is of technical or commercial advantage to its possessor, or other information required by law or agreement to be kept confidential. Information designated as "Confidential" may be used and communicated only as provided in this Protective Order.

(h) A designation of "Attorneys' Eyes Only" shall be limited to: (1) trade secrets; (2) highly sensitive design, development, or manufacturing information; (3) highly sensitive business planning, strategy or marketing information; (4) highly sensitive financial information, including but not limited to financial statements unless such information is publicly available in some form; or (5) other confidential non-public information which the disclosing Party or non-party in good faith believes will result in significant risk of competitive disadvantage or harm if disclosed to another Party without restriction upon use or further disclosure.

Information designated as "Attorneys' Eyes Only" may only be used and disclosed as provided in this Protective Order.

(i) A designation of "Restricted Attorneys' Eyes Only" shall be limited to:

(1) source code; (2) source code comments; or (3)documents describing or including source code. Information designated as "Restricted Attorneys' Eyes Only" may only be used and disclosed as provided in this Protective Order.

Designation and Maintenance of Information.

3. Confidential, Attorneys' Eyes Only, and Restricted Attorneys' Eyes Only information does not include, and this Protective Order does not apply to (1) information that is already lawfully in the knowledge or possession of the Receiving Party, unless that Party is already bound by agreement not to disclose such information, or (2) information that has been disclosed to the public or third persons in a manner making such information no longer confidential.

4. Discovery Materials produced during the course of this Litigation within the scope of paragraph 2(g) above may be designated by the Producing Party as containing Confidential information by placing on each page and each thing a legend substantially as follows:

"CONFIDENTIAL" or "CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER"

All documents of a Party that are electronic in their native format, shall be produced to the Requesting Party in electronic format, unless otherwise agreed upon by the parties in writing. The Designating Party shall designate Confidential Information by (1) producing the documents in a database and including the designation in a separate database field, (2) affixing a label to the media on which the native documents are being produced, (3) including the designation in the native document's file name, or (4) providing notice of such designation by any other means agreed to in writing by both the Receiving Party and the Producing Party. To the extent a Receiving Party intends to use a document produced in native format for depositions, pleadings, trial, or for any other purpose where the identification of individual pages is necessary, that Party shall number the individual pages of the document (such that, for example, with respect to information produced in native format and marked with the bates number "227543," a Party wishing to use that information in a deposition will number the individual pages as "227543.1, 227543.2, .").

5. Discovery Materials produced during the course of this Litigation within the scope of paragraph 2(h) above may be designated by the Producing Party as containing Attorneys' Eyes Only information by placing on each page and each thing a legend substantially as follows:

"ATTORNEYS' EYES ONLY" or "ATTORNEYS' EYES ONLY SUBJECT TO PROTECTIVE ORDER"

All documents of a Party that are electronic in their native format, shall be produced to the Requesting Party in electronic format, unless otherwise agreed to by the parties in writing. The Designating Party shall designate Attorneys' Eyes Only information by (1) producing the documents in a database and including the designation in a separate database field, (2) affixing a label to the media on which the native documents are being produced, (3) including the designation in the native document's file name, or (4) providing notice of such designation by any other means agreed to in writing by both the Receiving Party and the Producing Party. To the extent a Receiving Party intends to use a document produced in native format for depositions, pleadings, trial, or for any other purpose where the identification of individual pages is necessary, that Party shall number the individual pages of the document (such that, for example, with respect to information produced in native format and marked with the bates number "227543," a Party wishing to use that information in a deposition will number the individual pages as "227543.1, 227543.2, .").

6. Discovery Materials produced during the course of this Litigation within the scope of paragraph 2(i) above may be designated by the Producing Party as containing Restricted Attorneys' Eyes Only information by placing on each page and each thing a legend substantially as follows: "RESTRICTED ATTORNEYS' EYES ONLY" or "RESTRICTED ATTORNEYS' EYES ONLY SUBJECT TO PROTECTIVE ORDER"

All documents of a Party that are electronic in their native format, shall be produced to the Requesting Party in electronic format, unless otherwise agreed by the parties in writing. The Designating Party shall designate Restricted Attorneys' Eyes Only information by (1) producing the documents in a database and including the designation in a separate database field, (2) affixing a label to the media on which the native documents are being produced, (3) including the designation in the native document's file name, or (4) providing notice of such designation by any other means agreed to in writing by both the Receiving Party and the Producing Party. To the extent a Receiving Party intends to use a document produced in native format for depositions, pleadings, trial, or for any other purpose where the identification of individual pages is necessary, that Party shall number the individual pages of the document (such that, for example, with respect to information produced in native format and marked with the bates number "227543," a Party wishing to use that information in a deposition will number the individual pages as "227543.1, 227543.2, .").

7. A Party may designate Discovery Materials disclosed at a deposition as Confidential, Attorneys' Eyes Only, or Restricted Attorneys' Eyes Only by requesting the reporter to so designate the transcript or any portion of the transcript at the time of the deposition. If no such designation is made at the time of the deposition, any Party will have twenty one (21) calendar days after receipt of the deposition transcript to designate, in writing to the other Parties and to the court reporter, whether the transcript or any portion thereof is to be designated as Confidential, Attorneys' Eyes Only, or Restricted Attorneys' Eyes Only. During this twenty one (21) calendar day period, the transcript must be treated as Attorneys' Eyes Only, unless the Producing Party consents to less confidential treatment of all or some of the transcript. If no such designation is made at the time of the deposition or within this twenty one (21) calendar day period, the entire deposition will be considered devoid of Confidential, Attorneys' Eyes Only, or Restricted Attorneys' Eyes Only information. Each Party and the court reporter must attach a copy of any final and timely written designation notice to the transcript and each copy of the transcript in its possession, custody or control, and the portions designated in such notice must thereafter be treated in accordance with this Protective Order. It is the responsibility of outside counsel of record for each Party to maintain materials containing Confidential, Attorneys' Eyes Only, or Restricted Attorneys' Eyes Only information in a secure manner and appropriately identified so as to allow access to such information only to such persons and under such terms as is permitted under this Protective Order.

Inadvertent Failure to Designate or Claim Privilege.

8. (a) The inadvertent failure to designate Discovery Materials in accordance with this Protective Order or to withhold information, documents, or other things as subject to the attorney-client privilege, the attorney work product doctrine, or other applicable immunity, privilege, or exemption from discovery, will not be deemed to waive a later claim as to its confidential or privileged nature. In the case of a failure to designate Discovery Materials under the Protective Order, such failure shall not preclude the Producing Party from making appropriate designations at a later date in writing and with particularity. The newly designated information must be treated by any Receiving Party in accordance with its new designation from the time the Receiving Party is notified in writing of the change.

(b) If a Producing Party inadvertently discloses to a Receiving Party information that is subject to the attorney-client privilege, the attorney work product doctrine, or that is otherwise privileged or immune from discovery, the Producing Party shall promptly, upon learning of such disclosure, so advise the Receiving Party in writing. Should the Receiving Party reasonably believe that the Producing Party inadvertently produced privileged Discovery Materials, the Receiving Party shall promptly notify the Producing Party in writing. The Producing Party shall respond within fourteen (14) calendar days confirming the privilege status of the Discovery Materials in question. If the Producing Party notifies the Receiving Party that the Discovery Materials identified by the Receiving Party are privileged, then the Receiving Party shall return or confirm the destruction of all of the identified Discovery Materials within fourteen (14) calendar days of receipt of the notice from the Producing Party that the Discovery Materials in question are privileged and shall thereafter refrain from any use whatsoever, in this case or otherwise, of such document or thing. The notice from the Producing Party shall include a privilege log for the inadvertently produced materials to the Receiving Party. No Party to this Litigation shall thereafter assert that such disclosure waived any claim of attorney-client privilege, attorney work product, or other privilege or immunity. The Party returning or destroying such inadvertently produced Discovery Materials may seek production of any such documents in accordance with the Federal Rules of Civil Procedure (based on information independent of the content of the allegedly privileged materials in question), but in so doing may not assert that the inadvertent production by the Producing Party waived any claim of attorney-client privilege, attorney work product, or other privilege or immunity. Nothing herein shall prevent the Receiving Party from contending that privilege was waived for reasons other than the mere inadvertent production thereof, but such contention shall be based on the privilege log contents and not on the contents of the inadvertently produced document. Outside counsel of record shall not be required to delete information that may reside on their respective firms' electronic back-up systems that are overwritten in the normal course of business.

Challenge to Designations.

9. A Receiving Party may challenge a Producing Party's designation of information as Confidential, Attorneys' Eyes Only, or Restricted Attorneys' Eyes Only at any time. Any Receiving Party disagreeing with a designation may request in writing that the Producing Party change the designation. A Receiving Party that elects to initiate a challenge must do so in good faith and explain in writing the basis for its belief that the confidentiality designation was improper. The Producing Party will then have fourteen (14) calendar days after receipt of a challenge notice to advise the Receiving Party whether or not it will change the designation. If the Parties are unable to reach agreement after the expiration of this fourteen (14) calendar day time-frame, the Receiving Party may at any time thereafter seek an order to alter the confidential or privileged status of the designated information. Until any dispute under this paragraph is ruled upon by the Court, the Producing Party's designation will remain in full force and effect, and the information will continue to be accorded the designated level of confidential treatment required by this Protective Order. The Producing Party shall have the burden of persuading the Court that the designation of materials as Confidential, Attorneys' Eyes Only, or Restricted Attorneys' Eyes Only is appropriate.

Disclosure and Use of Confidential Information.

10. Absent agreement in writing by the Producing Party or Order of the Court, information designated as Confidential, Attorneys' Eyes Only, or Restricted Attorneys' Eyes Only may only be used for purposes of preparation, trial, and appeal of this Litigation. This Protective Order has no effect upon and shall not apply to (a) any Producing Party's use of its own Confidential, Attorneys' Eyes Only, or Restricted Attorneys' Eyes Only materials for any purpose, (b) any person's use of documents or other information developed or obtained independently of discovery in this Litigation for any purpose, or (c) non-confidential documents produced in this Litigation.

11. Nothing in this Protective Order shall bar or otherwise restrict any attorney from rendering advice to a Party-client in this Litigation and, in the course thereof, relying upon such attorney's knowledge of Confidential, Attorneys' Eyes Only, or Restricted Attorneys' Eyes Only information; provided, however, that counsel shall not disclose the substance of Confidential, Attorneys' Eyes Only, or Restricted Attorneys' Eyes Only information in a manner not specifically authorized under this Protective Order.

12. Subject to paragraph 14 below, information designated Confidential may be disclosed by the Receiving Party only to the following individuals, provided that such individuals are informed of the terms of this Protective Order:

(a) any natural person who is a Party or a current officer, director or other employee, but: (i) only to the extent necessary to assist in the conduct or preparation of this litigation; and (ii) only after that individual executes a Confidentiality Agreement in the form ...


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