FASTVDO LLC, Plaintiff, v. AT&T MOBILITY LLC, et al., Defendants Consolidated Case No.: 16-cv-385-H-WVG United States District Court, S.D. California Signed July 25, 2016 Counsel Marc A. Fenster, Arka D. Chatterjee, Christian W. Conkle, Jeffrey Zhi Yang Liao, Philip X. Wang, Reza Mirzaie, Shani M. Tutt, Russ August and Kabat, Los Angeles, CA, for Plaintiff. Brian E. Ferguson, Christopher T. Marando, Daniel Musher, Megan H. Wantland, Weil, Gotshal & Manges LLP, Christopher Joseph Siebens, Orrick, Herrington & Sutcliffe LLP, John E. Nilsson, Matthew M. Wolf, Ali R. Sharifahmadian, Jin-Suk Park, Arnold & Porter Kaye Scholer LLP, Washington, DC, Anne Marie Cappella, Weil, Gotshal & Manges LLP, Redwood Shores, CA, Heather F. Auyang, LTL Attorneys LLP, South San Francisco, CA, Peter Wied, LTL Attorneys, LLP, James S. Blackburn, Nicholas H. Lee, Arnold & Porter Kaye Scholer, LLP, Los Angeles, CA, Alex Chachkes, Catrina Wang, Orrick Herrington & Sutcliffe LLP, New York, NY, Sara J. O'Connell, Daniel M. Benjamin, Edward Chang, Sanjay Bhandari, McNamara Smith LLP, San Diego, CA, Everett McClyde Upshaw, Erik Dykema, Upshaw, PLLC, Dallas, TX, Melissa Richards Smith, Gillam & Smith, LLP, Marshall, TX, for Defendants. Huff, Marilyn L., United States District Judge ORDER: (1) GRANTING JOINT MOTION FOR PROTECTIVE ORDER (2) STIPULATED PROTECTIVE ORDER REGARDING THE DISCLOSURE AND USE OF DISCOVERY MATERIALS *1 On July 22, 2016, the parties filed a joint motion for a protective order to govern the production of confidential information and an ESI order to govern the format of electronic document production and procedures for e-mail discovery. (Doc. No. 149.) Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the Court, for good cause shown grants the joint motion and enters the following protective order: Plaintiff FastVDO LLC (“Plaintiff” or “FastVDO”) and Defendants Apple Inc. (“Apple”), AT&T Mobility LLC, AT&T Services, Inc. (collectively, “AT&T”), LG Electronics, Inc., LG Electronics U.S.A., Inc. (collectively, “LG”), Microsoft Mobile Inc. (“Microsoft Mobile”), Futurewei Technologies, Inc., Huawei Device Co., Ltd., Huawei Device USA, Inc., Huawei Technologies Co., Ltd., Huawei Technologies USA, Inc. (collectively, “Huawei”), ZTE (USA) Inc. (“ZTE”), Samsung Electronics Co., Ltd., and Samsung Electronics America, Inc. (collectively, “Samsung”) (collectively, “Defendants”) anticipate that documents, testimony, or information containing or reflecting confidential, proprietary, trade secret, export controlled, and/or commercially sensitive information are likely to be disclosed or produced during the course of discovery, initial disclosures, and supplemental disclosures in Case Nos. 16-cv-00385-H-WVG (the “AT&T/Apple litigation”), 16-cv-386-H-WVG (the “LG litigation”), 16-cv-390-H-WVG (the “Microsoft litigation”), 16-cv-394-H-WVG (the “ZTE litigation”), 16-cv-395-H-WVG (the “Samsung litigation”), and 16-cv-396-H-WVG (the “Huawei litigation”) (collectively, the “FastVDO litigations”) and request that the Court enter this Order setting forth the conditions for treating, obtaining, and using such information. Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the Court finds good cause for the following Agreed Protective Order Regarding the Disclosure and Use of Discovery Materials (“Order” or “Protective Order”). 1. PURPOSES AND LIMITATIONS (a) Protected Material designated under the terms of this Protective Order shall be used by a Receiving Party solely for the FastVDO litigations including related appellate proceedings, and shall not be used directly or indirectly for any other purpose whatsoever. (b) To the extent that any one of the Defendants in the FastVDO litigations provides Protected Material under the terms of this Protective Order to Plaintiff, Plaintiff shall not share that material with the other Defendants in the FastVDO litigations, absent express written permission from the producing Defendant. This Order does not confer any right to any one Defendant to access the Protected Material of any other Defendant. (c) The Parties acknowledge that this Order does not confer blanket protections on all disclosures during discovery, or in the course of making initial or supplemental disclosures under Rule 26(a). Designations under this Order shall be made with care and shall not be made absent a good faith belief that the designated material satisfies the criteria set forth below. If it comes to a Producing Party's attention that designated material does not qualify for protection at all, or does not qualify for the level of protection initially asserted, the Producing Party must promptly notify all other Parties that it is withdrawing or changing the designation. 2. DEFINITIONS *2 (a) “Discovery Material” means all items or information, including from any non-party, regardless of the medium or manner generated, stored, or maintained (including, among other things, testimony, transcripts, or tangible things) that are produced, disclosed, or generated in connection with discovery or Rule 26(a) disclosures in the FastVDO litigations. (b) “Outside Counsel” means (i) outside counsel of record and (ii) partners, associates, and staff of such counsel (including paralegals, secretaries, and other support staff) to whom it is reasonably necessary to disclose the information for this litigation. (c) “Patent-in-suit” means U.S. Patent No. 5,850,482 and any other patent asserted in the FastVDO litigations, as well as any related patents, patent applications, provisional patent applications, continuations, and/or divisionals. (d) “Party” means any party to the FastVDO litigations, including all of its officers, directors, employees, consultants, retained experts, and outside counsel and their support staffs. (e) “Producing Party” means any Party or non-party that discloses or produces any Discovery Material in the FastVDO litigations. (f) “Protected Material” means any Discovery Material that is designated as “CONFIDENTIAL,” “CONFIDENTIAL—ATTORNEYS' EYES ONLY,” or “CONFIDENTIAL—OUTSIDE ATTORNEYS' EYES ONLY—SOURCE CODE,” as provided for in this Order. Protected Material shall not include: (i) advertising materials that have been actually published or publicly disseminated; and (ii) materials that show on their face they have been disseminated to the public. (g) “Receiving Party” means any Party who receives Discovery Material from a Producing Party. (h) “Source Code” means computer code, scripts, assembly, binaries, object code, source code listings and descriptions of source code, object code listings and descriptions of object code, and Hardware Description Language (HDL) or Register Transfer Level (RTL) files that describe the hardware design of any ASIC or other chip. 3. COMPUTATION OF TIME The computation of any period of time prescribed or allowed by this Order shall be governed by the provisions for computing time set forth in Federal Rule of Civil Procedure 6. 4. SCOPE (a) The protections conferred by this Order cover not only Discovery Material governed by this Order as addressed herein, but also any information copied or extracted therefrom, as well as all copies, excerpts, summaries, or compilations thereof, plus testimony, conversations, or presentations by Parties or their counsel in court or in other settings that might reveal Protected Material. (b) Nothing in this Protective Order shall prevent or restrict a Producing Party's own disclosure or use of its own Protected Material for any purpose, and nothing in this Order shall preclude any Producing Party from showing its Protected Material to either: (1) an individual who prepared the Protected Material; or (2) an individual who it can be demonstrated was a recipient of the Protected Material without violation of this Protective Order. (c) Nothing in this Order shall be construed to prejudice any Party's right to use any Protected Material in court or in any court filing with the consent of the Producing Party or by order of the Court. (d) This Order is without prejudice to the right of any Party to seek further or additional protection of any Discovery Material or to modify this Order in any way, including, without limitation, an order that certain matter not be produced at all. 5. DURATION *3 Even after the termination of the FastVDO litigations, the confidentiality obligations imposed by this Order shall remain in effect until a Producing Party agrees otherwise in writing or a court order otherwise directs. 6. ACCESS TO AND USE OF PROTECTED MATERIAL (a) Basic Principles. All Protected Material shall be used solely for the FastVDO litigations or any related appellate proceeding, and not for any other purpose whatsoever, including without limitation any other litigation, patent prosecution or acquisition, inter partes review proceedings, post grant review proceedings, covered business method review proceedings, patent reexamination or reissue proceedings, or any business or competitive purpose or function. Protected Material shall not be distributed, disclosed or made available to anyone except as expressly provided in this Order. (b) Patent Prosecution Bar. Absent the written consent of the Producing Party, any person on behalf of the Plaintiff who receives one or more items designated “CONFIDENTIAL—ATTORNEYS' EYES ONLY” or “CONFIDENTIAL—ATTORNEYS' EYES ONLY—SOURCE CODE” by a Defendant shall not be involved, directly or indirectly, in any of the following activities: (i) Advising on, consulting on, preparing, prosecuting, drafting, editing, and/or amending of patent applications, specifications, claims, and/or responses to office actions, or otherwise affecting the scope of claims in patents or patent applications relating to the functionality, operation, and design of voice codecs or error protection schemes relating to data transmission or storage (generally or as described in any patent in suit), before any foreign or domestic agency, including the United States Patent and Trademark Office. These prohibitions are not intended to and shall not preclude counsel from participating in proceedings on behalf of a Party challenging the validity of any patent, but are intended, inter alia, to preclude counsel from participating directly or indirectly in reexamination, inter partes review, covered business method review, or reissue proceedings on behalf of a patentee. These prohibitions shall begin when “CONFIDENTIAL—ATTORNEYS' EYES ONLY” or “CONFIDENTIAL—ATTORNEYS' EYES ONLY—SOURCE CODE” materials are first received by the affected individual, and shall end two (2) years after the final resolution of the FastVDO litigations, including all appeals. Nothing in this paragraph shall prevent any attorney from sending non-confidential prior art to an attorney involved in patent prosecution for purposes of ensuring that such prior art is submitted to the U.S. Patent and Trademark Office (or any similar agency of a foreign government) to assist a patent applicant in complying with its duty of candor. (ii) Advising clients as to which patents (including patent applications, or the rights to any such patents or patent applications with the right to sublicense) to acquire to the extent that such patents, applications, or rights are narrowly related to the functionality, operation, and design of voice codecs or error protection schemes relating to data transmission or storage (generally or as described in any patent in suit), but the affected individual may advise on legal matters involving such patents, including, e.g., validity (subject to the patent prosecution bar that applies to the Plaintiff in this Section 6(b)(i)). Nothing in this provision shall apply to information only received during settlement negotiations of the FastVDO litigations. This limited patent acquisition bar shall apply when “CONFIDENTIAL—ATTORNEYS' EYES ONLY” or “CONFIDENTIAL ATTORNEYS' EYES ONLY—SOURCE CODE” information is first accessed by the affected individual and shall end two (2) years after the earlier of: (1) final termination of this action, including all appeals; or (2) when the affected individual is no longer employed or retained by Outside Counsel of Record for the Receiving Party and no longer has access to “CONFIDENTIAL—ATTORNEYS' EYES ONLY” or “CONFIDENTIAL ATTORNEYS' EYES ONLY—SOURCE CODE” information. *4 (c) Secure Storage, No Export. Protected Material must be stored and maintained by a Receiving Party at a location in the United States and in a secure manner that ensures that access is limited to the persons authorized under this Order. Any person receiving export controlled information has a responsibility to ensure that the information is not made public. To prevent public disclosure of such information, the Parties agree to follow the procedure outlined in this paragraph before any document is “exported,” as that term is described in 15 C.F.R. § 730.5(c) or 22 C.F.R. § 120.17, or otherwise made public. All export controlled information will be furnished by U.S. Persons as defined by U.S. export control laws and regulations (hereafter “U.S. Persons”) directly to counsel. Counsel hereby certifies that they and their personnel who receive export controlled information are and will be U.S. Persons, that they will store all export controlled information in a manner such that access is restricted only to U.S. Persons, and that no export controlled information will be physically transported outside U.S. territory. Before furnishing any document (including any export controlled information, any written discovery, and any deposition transcript) to a non-U.S. Person, including by publicly filing the document with the Court, counsel shall take all steps necessary to ensure that the document or information is used and accessed in accordance with the EAR, 15 C.F.R. §§ 730, et seq., and/or ITAR, 22 C.F.R. §§ 120, et seq., and disclosed only to U.S. Persons or as otherwise permitted under U.S. law. (d) Legal Advice Based on Protected Material. Nothing in this Protective Order shall be construed to prevent counsel from advising their clients with respect to the FastVDO litigations based in whole or in part upon Protected Materials, provided counsel does not disclose the Protected Material itself except as provided in this Order. (e) Limitations. Nothing in this Order shall restrict in any way a Producing Party's use or disclosure of its own Protected Material. Nothing in this Order shall restrict in any way the use or disclosure of Discovery Material by a Receiving Party: (i) that is or has become publicly known through no fault of the Receiving Party; (ii) that is lawfully acquired by or known to the Receiving Party independent of the Producing Party; (iii) previously produced, disclosed and/or provided by the Producing Party to the Receiving Party or a non-party without an obligation of confidentiality and not by inadvertence or mistake; (iv) with the consent of the Producing Party; or (v) pursuant to order of the Court. (f) Cross-Production of Defendant Confidential Material. No Defendant is required to produce its Protected Material to any other Defendant or Defendants, but nothing in this Order shall preclude such production. Notwithstanding the provisions of this Protective Order, Plaintiff shall not disclose one Defendant's Protected Material to any other Defendant or Defendants through Court filings, oral argument in Court, expert reports, deposition, discovery requests, discovery responses, or any other means, without the express prior written consent of the Defendant that produced the Protected Material. 7. DESIGNATING PROTECTED MATERIAL (a) Available Designations. Any Producing Party may designate Discovery Material with any of the following designations, provided that it meets the requirements for such designations as provided for herein: “CONFIDENTIAL,” “CONFIDENTIAL—ATTORNEYS' EYES ONLY,” or “CONFIDENTIAL—OUTSIDE ATTORNEYS' EYES ONLY—SOURCE CODE.” (b) Written Discovery and Documents and Tangible Things. Written discovery, documents (which include “electronically stored information,” as that phrase is used in Federal Rule of Procedure 34), and tangible things that meet the requirements for the confidentiality designations listed in Paragraph 7(a) may be so designated by placing the appropriate designation on every page of the written material prior to production. For digital files being produced, the Producing Party may mark each viewable page or image with the appropriate designation, and mark the medium, container, and/or communication in which the digital files were contained. In the event that original documents are produced for inspection, the original documents shall be presumed “CONFIDENTIAL—ATTORNEYS' EYES ONLY” during the inspection and re-designated, as appropriate during the copying process. (c) Native Files. Where electronic files and documents are produced in native electronic format, such electronic files and documents shall be designated for protection under this Order by appending to the file names or designators information indicating whether the file contains “CONFIDENTIAL,” “CONFIDENTIAL—ATTORNEYS' EYES ONLY,” or “CONFIDENTIAL—OUTSIDE ATTORNEYS' EYES ONLY—SOURCE CODE,” material, or shall use any other reasonable method for so designating Protected Materials produced in electronic format. When electronic files or documents are printed for use at deposition, in a court proceeding, or for provision in printed form to an expert or consultant pre-approved pursuant to Paragraph 12, the party printing the electronic files or documents shall affix a legend to the printed document corresponding to the designation of the Designating Party and including the production number and designation associated with the native file. *5 (d) Depositions and Testimony. Parties or testifying persons or entities may designate depositions and other testimony with the appropriate designation by indicating on the record at the time the testimony is given or by sending written notice of how portions of the transcript of the testimony is designated within thirty (30) days of receipt of the transcript of the testimony. If no indication on the record is made, all information disclosed during a deposition shall be deemed “CONFIDENTIAL—ATTORNEYS' EYES ONLY” until the time within which it may be appropriately designated as provided for herein has passed. Any Party that wishes to disclose the transcript, or information contained therein, may provide written notice of its intent to treat the transcript as non-confidential, after which time, any Party that wants to maintain any portion of the transcript as confidential must designate the confidential portions within fourteen (14) days, or else the transcript may be treated as non-confidential. Any Protected Material that is used in the taking of a deposition shall remain subject to the provisions of this Protective Order, along with the transcript pages of the deposition testimony dealing with such Protected Material. In such cases the court reporter shall be informed of this Protective Order and shall be required to operate in a manner consistent with this Protective Order. In the event the deposition is videotaped, the original and all copies of the videotape shall be marked by the video technician to indicate that the contents of the videotape are subject to this Protective Order, substantially along the lines of “This videotape contains confidential testimony used in this case and is not to be viewed or the contents thereof to be displayed or revealed except pursuant to the terms of the operative Protective Order in the FastVDO litigations or pursuant to written stipulation of the parties.” Counsel for any Producing Party shall have the right to exclude from oral depositions, other than the deponent, deponent's counsel, the reporter and videographer (if any), any person who is not authorized by this Protective Order to receive or access Protected Material based on the designation of such Protected Material. Such right of exclusion shall be applicable only during periods of examination or testimony regarding such Protected Material. 8. DISCOVERY MATERIAL DESIGNATED AS “CONFIDENTIAL” (a) A Producing Party may designate Discovery Material as “CONFIDENTIAL” if it contains or reflects confidential, proprietary, and/or commercially sensitive information. (b) Unless otherwise ordered by the Court, Discovery Material designated as “CONFIDENTIAL” may be disclosed only to the following: (i) The Receiving Party's Outside Counsel, such counsel's paralegals and staff, and any copying or clerical litigation support services working at the direction of such counsel, paralegals, and staff; (ii) Not more than three (3) representatives of the Receiving Party who are officers or employees of the Receiving Party, who may be, but need not be, in-house counsel for the Receiving Party, as well as their paralegals and staff, to whom disclosure is reasonably necessary for the FastVDO litigations, provided that: (a) each such person has agreed to be bound by the provisions of the Protective Order by signing a copy of Exhibit A; and (b) no unresolved objections to such disclosure exist after proper notice has been given to all Parties as set forth in Paragraph 12 below; (iii) Any outside expert or consultant retained by the Receiving Party to assist in one or more of the FastVDO litigations, provided that disclosure is only to the extent necessary to perform such work; and provided that: (a) such expert or consultant has agreed to be bound by the provisions of the Protective Order by signing a copy of Exhibit A; (b) such expert or consultant is not a current officer, director, or employee of a Party or of a competitor of a Party, nor anticipated at the time of retention to become an officer, director or employee of a Party or of a competitor of a Party; (c) such expert or consultant accesses the materials in the United States only, and does not transport them to or access them from any foreign jurisdiction; and (d) no unresolved objections to such disclosure exist after proper notice has been given to all Parties as set forth in Paragraph 12 below. Without the express prior written consent of the Defendant that produced the Protected Material, no expert or consultant retained by a Defendant in one or more of the FastVDO litigations shall have access to “CONFIDENTIAL—ATTORNEYS' EYES ONLY” Discovery Material produced by another Defendant in the FastVDO litigations; (iv) Court reporters, stenographers and videographers retained to record testimony taken in one or more of the FastVDO litigations; (v) The Court, jury, and court personnel; (vi) Graphics, translation, design, and/or trial consulting personnel, having first agreed to be bound by the provisions of the Protective Order by signing a copy of Exhibit A; (vii) Mock jurors who have signed an undertaking or agreement agreeing not to publicly disclose Protected Material and to keep any information concerning Protected Material confidential; (viii) Any mediator who is assigned to hear one or more of the FastVDO litigations, and his or her staff, subject to their agreement to maintain confidentiality to the same degree as required by this Protective Order; and *6 (ix) Any other person with the prior written consent of the Producing Party. 9. DISCOVERY MATERIAL DESIGNATED AS “CONFIDENTIAL—ATTORNEYS' EYES ONLY” (a) A Producing Party may designate Discovery Material as “CONFIDENTIAL—ATTORNEYS' EYES ONLY” if it contains or reflects information that is extremely confidential and/or sensitive in nature and the Producing Party reasonably believes that the disclosure of such Discovery Material is likely to cause economic harm or significant competitive disadvantage to the Producing Party. The Parties agree that the following information, if non-public, shall be presumed to merit the “CONFIDENTIAL—ATTORNEYS' EYES ONLY” designation: trade secrets, pricing information, financial data, sales information, sales or marketing forecasts or plans, business plans, sales or marketing strategy, product development information, engineering documents, testing documents, employee information, and other non-public information of similar competitive and business sensitivity. (b) Unless otherwise ordered by the Court, Discovery Material designated as “CONFIDENTIAL—ATTORNEYS' EYES ONLY” may be disclosed only to: (i) The Receiving Party's Outside Counsel, provided that such Outside Counsel is not involved in competitive decision-making, as defined by U.S. Steel v. United States, 730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984), on behalf of a Party or a competitor of a Party, and such Outside Counsel's paralegals and staff, and any copying or clerical litigation support services working at the direction of such counsel, paralegals, and staff; (ii) With respect to Discovery Material produced by the Plaintiff, not more than three (3) in-house counsel of the Receiving Party, as well as their paralegals and staff to whom disclosure is reasonably necessary for the FastVDO litigations, provided that: (a) each such person has agreed to be bound by the provisions of the Protective Order by signing a copy of Exhibit A; and (b) no unresolved objections to such disclosure exist after proper notice has been given to all Parties as set forth in Paragraph 12 below; (iii) Any outside expert or consultant retained by the Receiving Party to assist in one or more of the FastVDO litigations, provided that disclosure is only to the extent necessary to perform such work; and provided that: (a) such expert or consultant has agreed to be bound by the provisions of the Protective Order by signing a copy of Exhibit A; (b) such expert or consultant is not a current officer, director, or employee of a Party or of a competitor of a Party, nor anticipated at the time of retention to become an officer, director, or employee of a Party or of a competitor of a Party; (c) such expert or consultant is not involved in competitive decision-making, as defined by U.S. Steel v. United States, 730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984), on behalf of a Party or a competitor of a Party; (d) such expert or consultant accesses the materials in the United States only, and does not transport them to or access them from any foreign jurisdiction; and (e) no unresolved objections to such disclosure exist after proper notice has been given to all Parties as set forth in Paragraph 12 below. Without the express prior written consent of the Defendant that produced the Protected Material, no expert or consultant retained by a Defendant in one or more of the FastVDO litigations shall have access to “CONFIDENTIAL—OUTSIDE ATTORNEYS' EYES ONLY” Discovery Material produced by another Defendant in one or more of the FastVDO litigations; *7 (iv) Court reporters, stenographers and videographers retained to record testimony taken in one or more of the FastVDO litigations; (v) The Court, jury, and court personnel; (vi) Graphics, translation, design, and/or trial consulting personnel, having first agreed to be bound by the provisions of the Protective Order by signing a copy of Exhibit A; (vii) Any mediator who is assigned to hear one or more of the FastVDO litigations, and his or her staff, subject to their agreement to maintain confidentiality to the same degree as required by this Protective Order; and (viii) Any other person with the prior written consent of the Producing Party. 10. DISCOVERY MATERIAL DESIGNATED AS “CONFIDENTIAL—OUTSIDE ATTORNEYS' EYES ONLY—SOURCE CODE” (a) To the extent production of Source Code becomes necessary to the prosecution or defense of the FastVDO litigations, a Producing Party may designate Source Code as “CONFIDENTIAL—OUTSIDE ATTORNEYS' EYES ONLY—SOURCE CODE” if it comprises or includes confidential, proprietary, and/or trade secret Source Code. (b) Nothing in this Order shall be construed as a representation or admission that Source Code is properly discoverable in the FastVDO litigations, or to obligate any Party to produce any Source Code. (c) Unless otherwise ordered by the Court, Discovery Material designated as “CONFIDENTIAL—OUTSIDE ATTORNEYS' EYES ONLY—SOURCE CODE” shall be subject to the provisions set forth in Paragraph 11 below, and may be disclosed, subject to Paragraph 11 below, solely to: (i) The Receiving Party's Outside Counsel, provided that such Outside Counsel is not involved in competitive decision-making, as defined by U.S. Steel v. United States, 730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984), on behalf of a Party or a competitor of a Party, and such Outside Counsel's paralegals and staff, and any copying or clerical litigation support services working at the direction of such counsel, paralegals, and staff; (ii) No more than three[1] outside experts or consultants retained by the Receiving Party to assist in one or more of the FastVDO litigations, provided that disclosure is only to the extent necessary to perform such work; and provided that: (a) such expert or consultant has agreed to be bound by the provisions of the Protective Order by signing a copy of Exhibit A; (b) such expert or consultant is not a current officer, director, or employee of a Party or of a competitor of a Party, nor anticipated at the time of retention to become an officer, director or employee of a Party or of a competitor of a Party; (c) such expert or consultant is not involved in competitive decision-making, as defined by U.S. Steel v. United States, 730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984), on behalf of a Party or a competitor of a Party; and (d) no unresolved objections to such disclosure exist after proper notice has been given to all Parties as set forth in Paragraph 12 below. Without the express prior written consent of the Defendant that produced the Protected Material, no expert or consultant retained by a Defendant in one or more of the FastVDO litigations shall have access to “CONFIDENTIAL—OUTSIDE ATTORNEYS' EYES ONLY—SOURCE CODE” Discovery Material produced by another Defendant in the FastVDO litigations; *8 (iii) Court reporters, stenographers and videographers retained to record testimony taken in one or more of the FastVDO litigations; (iv) The Court, jury, and court personnel; (v) Any mediator who is assigned to hear one or more of the FastVDO litigations, and his or her staff, subject to their agreement to maintain confidentiality to the same degree as required by this Protective Order; and (vi) Any other person with the prior written consent of the Producing Party. 11. DISCLOSURE AND REVIEW OF SOURCE CODE (a) Any Source Code that is produced by Plaintiff shall be made available for inspection in electronic format at the Los Angeles office of its outside counsel, Russ August Kabat, or any other location mutually agreed by the Parties. Any Source Code that is produced by Apple Inc. will be made available for inspection at the Redwood Shores office of its outside counsel, Weil, Gotshal and Manges LLP, or any other location mutually agreed by the Parties. Any Source Code that is produced by AT&T Mobility LLC or AT&T Services, Inc. will be made available for inspection at the Palo Alto office of its outside counsel, Paul Hastings LLP, or any other location mutually agreed by the Parties. Any Source Code that is produced by Microsoft Mobile will be made available for inspection at the Seattle or San Francisco offices (at Microsoft Mobile's election) of its outside counsel, Davis Wright Tremaine, LLP, or any other location mutually agreed by the Parties. Any Source Code that is produced by Samsung Electronics Co., Ltd., or Samsung Electronics America, Inc. will be made available for inspection at the Washington, D.C. office of its outside counsel, Arnold & Porter LLP, or any other location mutually agreed by the Parties. Any source code that is produced by ZTE will be made available for inspection at the Dallas office of its outside counsel, Upshaw PLLC, or any other location mutually agreed by the Parties. Source Code will be made available for inspection between the hours of 9 a.m. and 6 p.m. on business days (i.e., weekdays that are not Federal holidays), although the Parties will be reasonable in accommodating reasonable requests to conduct inspections at other times. (b) Prior to the first inspection of any requested Source Code, the Receiving Party shall provide fourteen (14) days notice of the Source Code that it wishes to inspect. The Receiving Party shall provide seven (7) days notice prior to any additional inspections. (c) Source Code that is designated “CONFIDENTIAL—OUTSIDE ATTORNEYS' EYES ONLY—SOURCE CODE” shall be produced for inspection and review subject to the following provisions, unless otherwise agreed by the Producing Party: (i) All Source Code shall be made available by the Producing Party to the Receiving Party's outside counsel and/or experts in a secure room on a secured computer without Internet access or network access to other computers and on which all access ports have been disabled (except for one printer port), 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”). The Producing Party shall install tools that are sufficient for viewing and searching the code produced, on the platform produced, if such tools exist and are presently used in the ordinary course of the Producing Party's business. The Receiving Party's outside counsel and/or experts may request that commercially available 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 must provide the Producing Party with the CD or DVD or a download link containing such licensed software tool(s) at least fourteen (14) 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. Moreover, the Receiving Party shall not at any time use any compilers, interpreters or simulators in connection with the Producing Party's Source Code and in no event shall tools be installed on the stand-alone computer that have the effect of altering, modifying, deleting, copying, or otherwise permitting the reproduction or removal of such Source Code. Notwithstanding the foregoing sentence, the Receiving Party may request the use of software tools on the Source Code Computer that might otherwise qualify as compilers, interpreters or simulators, but which have such compiling, interpreting, or simulation functions disabled (provided that such disablement can be effected in a reasonable and not unduly burdensome manner), and the Producing Party agrees to consider such requests in the same manner as requests for other commercially available software tools for viewing and searching Source Code. *9 (ii) No recordable media or recordable devices, including without limitation sound recorders, computers, cellular telephones, peripheral equipment, cameras, CDs, DVDs, or drives of any kind, shall be permitted into the Source Code Review Room. (iii) The Receiving Party's outside counsel and/or experts shall be entitled to take notes relating to the Source Code but may not copy the Source Code into the notes and may not take such notes electronically on the Source Code Computer itself. (iv) The Producing Party may visually monitor the activities of the Receiving Party's representatives during any Source Code review from outside the Source Code Review Room only, but only to ensure that no unauthorized electronic records of the Source Code and no information concerning the Source Code are being created or transmitted in any way. The Producing Party may not review any notes taken by the Receiving Party. (v) 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. Further, no other written or electronic record of the Source Code is permitted except as otherwise provided herein. The Producing Party shall make available a laser printer with commercially reasonable printing speeds for on-site printing during inspection of the Source Code. The Receiving Party may print limited portions of the Source Code only when necessary to prepare court filings or pleadings or other papers (including a testifying expert's expert report). Any printed portion that consists of more than 30 pages of a continuous block of Source Code shall be presumed to be excessive, and the burden shall be on the Receiving Party to demonstrate the need for such a printed copy. The Receiving Party may print out no more than one hundred (100) pages total. The Receiving Party shall not print Source Code in 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 code for review and analysis elsewhere, and that printing is permitted only when necessary to prepare court filings or pleadings or other papers (including a testifying expert's expert report). Upon printing any such portions of Source Code, the printed pages shall be collected by the Producing Party. The Producing Party shall Bates number, copy, and label “CONFIDENTIAL—OUTSIDE ATTORNEYS' EYES ONLY—SOURCE CODE” any pages printed by the Receiving Party. Within five (5) business days, the Producing Party shall either (i) provide one copy set of such pages to the Receiving Party or (ii) inform the Requesting Party that it objects that the printed portions are excessive and/or not done for a permitted purpose. If, after meeting and conferring, the Producing Party and the Receiving Party cannot resolve the objection, the Receiving Party shall be entitled to seek a Court resolution of whether the printed Source Code in question is narrowly tailored and was printed for a permitted purpose. The burden shall be on the Receiving Party to demonstrate that such printed portions are no more than is reasonably necessary for a permitted purpose and not merely printed for the purposes of review and analysis elsewhere. The printed pages shall constitute part of the Source Code produced by the Producing Party in one of the FastVDO litigations. *10 (vi) All persons who will review a Producing Party's Source Code on behalf of a Receiving Party, including members of a Receiving Party's outside law firm, shall be identified in writing to the Producing Party at least five (5) days in advance of the first time that such person reviews such Source Code. Such identification shall be in addition to any other disclosure required under this Order. All persons viewing Source Code shall sign on each day they view Source Code a log maintained by the Producing Party that will include the names of persons who enter the locked room to view the Source Code and when they enter and depart. (vii) Unless otherwise agreed in advance by the Parties in writing, following each day on which inspection is done under this Order, the Receiving Party's outside counsel and/or experts shall remove all notes, documents, and all other materials from the Source Code Review Room. The Producing Party shall not be responsible for any items left in the room following each inspection session, and the Receiving Party shall have no expectation of confidentiality for any items left in the room following each inspection session without a prior agreement to that effect. 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 secure room or the Source Code Computer may be denied, at the discretion of the supplier, to any individual who fails to provide proper identification. (viii) Other than as provided above, the Receiving Party will not copy, remove, or otherwise transfer any Source Code from the Source Code Computer including, without limitation, copying, removing, or transferring the Source Code onto any recordable media or recordable device. The Receiving Party will not transmit any Source Code in any way from the Producing Party's facilities or the offices of its outside counsel of record. (ix) The Receiving Party's outside counsel of record may make no more than three (3)[2] additional paper copies of any portions of the Source Code received from a Producing Party pursuant to Paragraph 11(c)(v), not including copies attached to court filings or used at depositions, and shall maintain a log of all paper copies of the Source Code. The log shall include the names of the reviewers and/or recipients of paper copies and locations where the paper copies are stored. Upon three (3) day's advance notice to the Receiving Party by the Producing Party, the Receiving Party shall provide a copy of this log to the Producing Party. (x) The Receiving Party's outside counsel of record and any person receiving a copy of any Source Code shall maintain and store any paper copies of the Source Code at their offices in a manner that prevents duplication of or unauthorized access to the Source Code, including, without limitation, storing the Source Code in a locked room or cabinet at all times when it is not in use. No more than a total of ten (10) individuals identified by the Receiving Party shall have access to the printed portions of a Defendant's Source Code (except insofar as such code appears in any court filing or expert report). (xi) For depositions, the Receiving Party shall not bring copies of any printed Source Code. Rather, at least ten (10) days before the date of the deposition, the Receiving Party shall notify the Producing Party of intent to use source code at the deposition and the Producing Party shall make the source code computer available for use at the deposition. Notwithstanding this provision, to the extent FastVDO seeks to use source code that is third-party confidential that is subject to a supplemental protective order, the provisions of the supplemental protective order shall govern. *11 (xii) Except as provided in this sub-paragraph, absent express written permission from the Producing Party, the Receiving Party may not create electronic images, or any other images, or make electronic copies, of the Source Code from any paper copy of Source Code for use in any manner (including by way of example only, the Receiving Party may not scan the Source Code to a PDF or photograph the code). 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 Party reasonably believes that it needs to submit a portion of Source Code as part of a filing with the Court, the Parties shall meet and confer as to how to make such a filing while protecting the confidentiality of the Source Code and such Source Code will not be filed absent agreement from the Producing Party that the confidentiality protections will be adequate or a court order. If a Producing Party agrees to produce an electronic copy of all or any portion of its Source Code or provide written permission to the Receiving Party that an electronic or any other copy needs to be made for a Court filing, access to the Receiving Party's submission, communication, and/or disclosure of electronic files or other materials containing any portion of 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 the locations and manner in which the electronic copies are stored. Additionally, any such electronic copies must be labeled “CONFIDENTIAL—ATTORNEYS' EYES ONLY—SOURCE CODE” as provided for in this Order. (xiii) A Party's agreement to the entry of this Order shall not be deemed an admission that the Party must produce Source Code in this action. 12. NOTICE OF DISCLOSURE (a) Prior to disclosing any Protected Material to any person described in Paragraphs 8(b)(ii), 8(b)(iii), 9(b)(ii), 9(b)(iii), or 10(c)(ii) (referenced below as “Person”), the Party seeking to disclose such information shall provide the Producing Party with written notice that includes: (i) the name of the Person; (ii) an up-to-date curriculum vitae of the Person; (iii) the present employer and title of the Person; (iv) unless such Person is in-house counsel for the Party, an identification of all of the Person's past and current employment and consulting relationships in the last seven (7) years, including direct relationships and relationships through entities owned or controlled by the Person, including but not limited to an identification of any individual or entity with or for whom the person is employed or to whom the person provides consulting services relating to the design, development, operation, or patenting of voice codecs or error protection schemes relating to data transmission or storage, or relating to the acquisition of intellectual property assets relating to voice codecs or error protection schemes relating to data transmission or storage; (v) an identification of all pending patent applications on which the Person is named as an inventor, in which the Person has any ownership interest, or as to which the Person has had or anticipates in the future any involvement in advising on, consulting on, preparing, prosecuting, drafting, editing, amending, or otherwise affecting the scope of the claims; and (vi) a list of the cases in which the Person has testified at deposition or trial within the last five (5) years. Further, the Party seeking to disclose Protected Material shall provide such other information regarding the Person's professional activities reasonably requested by the Producing Party for it to evaluate whether good cause exists to object to the disclosure of Protected Material to the Person. During the pendency of and for a period of two (2) years after the final resolution of the FastVDO litigations, including all appeals, the Party seeking to disclose Protected Material shall immediately provide written notice of any change with respect to the Person's involvement in the design, development, operation or patenting of voice codecs or error protection schemes relating to data transmission or storage, or the acquisition of intellectual property assets relating to voice codecs or error protection schemes relating to data transmission or storage. *12 (b) Within ten (10) days of receipt of the disclosure of the Person, the Producing Party or Parties may object in writing to the Person for good cause. In the absence of an objection at the end of the ten (10) day period, the Person shall be deemed approved under this Protective Order. There shall be no disclosure of Protected Material to the Person prior to expiration of this ten (10) day period. If the Producing Party objects to disclosure to the Person within such ten (10) day period, the Parties shall meet and confer via telephone or in person within seven (7) days following the objection and attempt in good faith to resolve the dispute on an informal basis. If the dispute is not resolved, the Party objecting to the disclosure will have seven (7) days from the date of the meet and confer to seek relief from the Court. If relief is not sought from the Court within that time, the objection shall be deemed withdrawn. If relief is sought, designated materials shall not be disclosed to the Person in question until the Court resolves the objection. (c) Prior to receiving any Protected Material under this Order, the Person must execute a copy of the “Agreement to Be Bound by Protective Order” (Exhibit A hereto) and serve it on all Parties. (d) If facts or circumstances giving rise to an objection that could not have been reasonably known based on the disclosures for that Person become known after the initial objection period, an initial failure to object to a Person under this Paragraph 12 shall not preclude the nonobjecting Party from later objecting to continued access by that Person if such objection is raised within ten (10) days of discovering those facts or circumstances. If an objection is made, the Parties shall meet and confer via telephone or in person within seven (7) days following the objection and attempt in good faith to resolve the dispute informally. If the dispute is not resolved, the Party objecting to the disclosure will have seven (7) days from the date of the meet and confer to seek relief from the Court. The designated Person may continue to have access to information that was provided to such Person prior to the date of the objection. If a later objection is made, no further Protected Material shall be disclosed to the Person until the Court resolves the matter or the Producing Party withdraws its objection. Notwithstanding the foregoing, if the Producing Party fails to move for a protective order within seven (7) business days after the meet and confer, further Protected Material may thereafter be provided to the Person. 13. CHALLENGING DESIGNATIONS OF PROTECTED MATERIAL (a) A Party shall not be obligated to challenge the propriety of any designation of Discovery Material under this Order at the time the designation is made, and a failure to do so shall not preclude a subsequent challenge thereto. (b) Any challenge to a designation of Discovery Material under this Order shall be written, shall be served on outside counsel for the Producing Party, shall particularly identify the documents or information that the Receiving Party contends should be differently designated, and shall state the grounds for the objection. Thereafter, further protection of such material shall be resolved in accordance with the following procedures: (i) The objecting Party shall have the burden of conferring either in person, in writing, or by telephone with the Producing Party claiming protection (as well as any other interested party) in a good faith effort to resolve the dispute. The Producing Party shall have the burden of justifying the disputed designation; (ii) Failing agreement, if the dispute is not resolved consensually between the parties within seven (7) days of receipt of the written challenge, the objecting Party may bring a motion to the Court for a ruling that the Discovery Material in question is not entitled to the status and protection of the Producing Party's designation. The Parties' entry into this Order shall not preclude or prejudice either Party from arguing for or against any designation, establish any presumption that a particular designation is valid, or alter the burden of proof that would otherwise apply in a dispute over discovery or disclosure of information; *13 (iii) Notwithstanding any challenge to a designation, the Discovery Material in question shall continue to be treated as designated under this Order until one of the following occurs: (a) the Party who designated the Discovery Material in question withdraws such designation in writing; or (b) the Court rules that the Discovery Material in question is not entitled to the designation. 14. SUBPOENAS OR COURT ORDERS (a) If at any time Protected Material is subpoenaed by any court, arbitral, administrative, or legislative body, the Party to whom the subpoena or other request is directed shall immediately give prompt written notice thereof to every Party who has produced such Discovery Material and to its counsel and shall provide each such Party with an opportunity to move for a protective order regarding the production of Protected Materials implicated by the subpoena. 15. FILING PROTECTED MATERIAL (a) Absent written permission from the Producing Party or a court Order secured after appropriate notice to all interested persons, a Receiving Party may not file or disclose in the public record any Protected Material. (b) Any Party is authorized under Patent L.R. 2.2 and CivLR 79.2(c), to file under seal with the Court any brief, document or materials that are designated as Protected Material under this Order. However, nothing in this section shall in any way limit or detract from this Order's requirements as to Source Code. 16. INADVERTENT DISCLOSURE OF PRIVILEGED MATERIAL (a) The inadvertent production by a Party of Discovery Material subject to the attorney-client privilege, work-product protection, or any other applicable privilege or protection will not waive the applicable privilege and/or protection if a request to destroy them or for return of such inadvertently produced Discovery Material is made promptly after the Producing Party learns of its inadvertent production. (b) Upon a request from any Producing Party who has inadvertently produced Discovery Material that it believes is privileged and/or protected, each Receiving Party shall immediately return to the Producing Party or destroy such Protected Material or Discovery Material and all copies, including those that have been shared with experts, consultants, and vendors, except for any pages containing privileged markings by the Receiving Party which shall instead be destroyed and certified in writing as such within three (3) business days by the Receiving Party to the Producing Party. No use shall be made of such documents or information during depositions, through motion practice, or at trial. (c) In the case of such returned production, the producing Party shall provide a privilege log identifying such documents or information within ten (10) business days of its original notice to the receiving Party. (d) Nothing herein shall prevent the Receiving Party from preparing a record for its own use containing the date, author, addresses, and topic of the inadvertently produced Discovery Material and such other information as is reasonably necessary to identify the Discovery Material and describe its nature to the Court in any motion to compel production of the Discovery Material. Any such motion shall be filed under seal and shall not assert as a ground for production the fact of the earlier production, nor shall the motion disclose or otherwise use the content of the previously produced and returned documents or information in any way (beyond any information appearing on the above-referenced privilege log). 17. INADVERTENT FAILURE TO DESIGNATE PROPERLY *14 (a) The inadvertent failure by a Producing Party to designate Discovery Material as Protected Material with one of the designations provided for under this Order shall not waive any such designation provided that the Producing Party notifies all Receiving Parties that such Discovery Material is protected under one of the categories of this Order within fourteen (14) days of the Producing Party learning of the inadvertent failure to designate. The Producing Party shall reproduce the Protected Material with the correct confidentiality designation within seven (7) days upon its notification to the Receiving Parties. Upon receiving the Protected Material with the correct confidentiality designation, the Receiving Parties shall return or securely destroy, at the Producing Party's option, all Discovery Material that was not designated properly. (b) A Receiving Party shall not be in breach of this Order for any use of such Discovery Material before the Receiving Party receives such notice that such Discovery Material is protected under one of the categories of this Order. Once a Receiving Party has received notification of the correct confidentiality designation for the Protected Material with the correct confidentiality designation, the Receiving Party shall treat such Discovery Material (subject to the exception in Paragraph 17(c) below) at the appropriately designated level pursuant to the terms of this Order. (c) Notwithstanding the above, a subsequent designation of “CONFIDENTIAL,” “CONFIDENTIAL—ATTORNEYS' EYES ONLY” or “CONFIDENTIAL—ATTORNEYS' EYES ONLY—SOURCE CODE” shall apply on a going forward basis and shall not disqualify anyone who reviewed “CONFIDENTIAL,” “CONFIDENTIAL—ATTORNEYS' EYES ONLY” or “CONFIDENTIAL—ATTORNEYS' EYES ONLY—SOURCE CODE” materials while the materials were not marked “CONFIDENTIAL—ATTORNEYS' EYES ONLY” or “CONFIDENTIAL—ATTORNEYS' EYES ONLY—SOURCE CODE” from engaging in the activities set forth in Paragraph 6(b). 18. INADVERTENT DISCLOSURE NOT AUTHORIZED BY ORDER (a) In the event of a disclosure of any Discovery Material pursuant to this Order to any person or persons not authorized to receive such disclosure under this Protective Order, the Party responsible for having made such disclosure, and each Party with knowledge thereof, shall immediately notify counsel for the Producing Party whose Discovery Material has been disclosed and provide to such counsel all known relevant information concerning the nature and circumstances of the disclosure. The responsible disclosing Party shall also promptly take all reasonable measures to retrieve the improperly disclosed Discovery Material and to ensure that no further or greater unauthorized disclosure and/or use thereof is made (b) Unauthorized or inadvertent disclosure does not change the status of Discovery Material or waive the right to hold the disclosed document or information as Protected. 19. DISCOVERY OF THIRD PARTIES (a) To the extent that any discovery is taken of persons who are not Parties to this action (“Third Parties”) and in the event that such third parties contend that the discovery sought involves trade secrets, confidential business information, or other proprietary information (“Third Party Protected Information”), then such Third Parties may provide such Third Party Protected Information subject to the protections of this Order applicable to Protected Materials. Third Parties that provide such Protected Material subject to the protections of this Order shall be considered a Producing Party as that term is used in this Order. Further, Third Party Protected Information shall be considered Protected Material as that term is used in this Order. (b) To the extent that discovery or testimony is taken of Third Parties, the Third Parties may designate as “CONFIDENTIAL” or “CONFIDENTIAL—ATTORNEYS' EYES ONLY” or “CONFIDENTIAL—OUTSIDE ATTORNEYS' EYES ONLY” OR “CONFIDENTIAL—OUTSIDE ATTORNEYS' EYES ONLY—SOURCE CODE,” any documents, information or other material, in whole or in part, produced or given by such Third Parties. The Third Parties shall have ten (10) days after production of such documents, information or other materials to make such a designation. Until that time period lapses or until such a designation has been made, whichever occurs sooner, all documents, information or other material so produced or given shall be treated as “CONFIDENTIAL—ATTORNEYS' EYES ONLY” in accordance with this Order. 20. FINAL DISPOSITION OR SETTLEMENT *15 (a) Not later than ninety (90) days after the Final Disposition of the FastVDO litigations, each Party shall return all Protected Material of a Producing Party to the respective outside counsel of the Producing Party or destroy such Material, at the option of the Producing Party. For purposes of this Order, “Final Disposition” occurs after an order, mandate, or dismissal finally terminating the FastVDO litigations with prejudice, including all appeals. (b) All Parties that have received any such Protected Material shall certify in writing that all such materials have been returned to the respective outside counsel of the Producing Party or destroyed. Notwithstanding the provisions for return of Protected Material, outside counsel may retain one set of pleadings, correspondence, and attorney and consultant work product (but not document productions), but must destroy any pleadings, correspondence, and consultant work product that contain Source Code. (c) Any Protected Material produced by a Defendant Party to the Plaintiff who settles or resolves all claims (“Resolved Defendant”) asserted by and against it herein prior to final termination of the FastVDO litigations, shall, at the Resolved Defendant's election, be returned to the Resolved Defendant or destroyed within thirty (30) days of such resolution or settlement, with the exception of anything that includes non-Resolved Defendant Discovery Material. Types of documents to be returned include information solely of the Resolved Defendant such as deposition transcripts of its witnesses, source code, discovery responses, and internal documents reflecting financial and technical information. 21. DISCOVERY FROM EXPERTS OR CONSULTANTS (a) Testifying experts shall not be subject to discovery with respect to any draft of his or her report(s) in the FastVDO litigations. Draft reports, disclosures, affidavits, notes, or outlines for such draft reports, disclosures, and affidavits developed and drafted by the testifying expert and/or his or her staff are also exempt from discovery. These prohibitions on expert discovery shall apply regardless of whether such documents were drafted in connection with the FastVDO litigations or any other judicial or administrative proceeding (b) Discovery of materials provided to testifying experts shall be limited to those materials, facts, consulting expert opinions, and other matters actually relied upon by the testifying expert in forming his or her final report, trial, or deposition testimony or any opinion in the FastVDO litigations. No discovery can be taken from any non-testifying expert except to the extent that such non-testifying expert has provided information, opinions, or other materials to a testifying expert relied upon by that testifying expert in forming his or her final report(s), trial, and/or deposition testimony or any opinion in the FastVDO litigations. (c) No conversations or communications between counsel and any testifying or consulting expert will be subject to discovery unless the conversations or communications are relied upon by such experts in formulating opinions that are presented in reports or trial or deposition testimony in the FastVDO litigations. The prohibitions on discovery of communications between a party's attorney and expert witnesses shall apply whether such communications were made in connection with the FastVDO litigations or any other judicial or administrative proceeding. (d) Materials, communications, and other information exempt from discovery under the foregoing Paragraphs 20(a)–(c) shall be treated as attorney-work product for the purposes of this litigation and Order. *16 (e) Nothing in this Protective Order, including Paragraphs 20(a)–(c), shall alter or change in any way the requirements in Paragraph 11 regarding Source Code, and Paragraph 11 shall control in the event of any conflict. 22. MISCELLANEOUS (a) Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the Court in the future. By stipulating to this Order, the Parties do not waive the right to argue that certain material may require additional or different confidentiality protections than those set forth herein. (b) Termination of Matter and Retention of Jurisdiction. The Parties agree that the terms of this Protective Order shall survive and remain in effect after the Final Determination of the FastVDO litigations. The Court shall retain jurisdiction after Final Determination of the FastVDO litigations to hear and resolve any disputes arising out of this Protective Order. (c) Successors. This Order shall be binding upon the Parties hereto, their attorneys, and their successors, executors, personal representatives, administrators, heirs, legal representatives, assigns, subsidiaries, divisions, employees, agents, retained consultants and experts, and any persons or organizations over which they have direct control. (d) Right to Assert Other Objections. By stipulating to the entry of this Protective Order, no Party waives any right it otherwise would have to object to disclosing or producing any information or item. Similarly, no Party waives any right to object on any ground to use in evidence of any of the material covered by this Protective Order. This Order shall not constitute a waiver of the right of any Party to claim in the FastVDO litigations or otherwise that any Discovery Material, or any portion thereof, is privileged or otherwise non-discoverable, or is not admissible in evidence in the FastVDO litigations or any other proceeding. (e) No Party shall be required to record on any privilege log required to be submitted pursuant to the Federal Rules, Local Rules, or other Orders of this Court any communications that occurred, or attorney work product generated, after the filing date of the earliest-filed original Complaint in this consolidated action. (f) Burdens of Proof. Notwithstanding anything to the contrary above, nothing in this Protective Order shall be construed to change the burdens of proof or legal standards applicable in disputes regarding whether particular Discovery Material is confidential, which level of confidentiality is appropriate, whether disclosure should be restricted, and if so, what restrictions should apply. (g) Modification by Court. This Order is subject to further court order based upon public policy or other considerations, and the Court may modify this Order sua sponte in the interests of justice. The United States District Court for the Southern District of California is responsible for the interpretation and enforcement of this Order. All disputes concerning Protected Material, however designated, produced under the protection of this Order shall be resolved by the United States District Court for the Southern District of California. (h) Discovery Rules Remain Unchanged. Nothing herein shall alter or change in any way the discovery provisions of the Federal Rules of Civil Procedure, the Local Rules for the United States District Court for the Southern District of California, or the Court's own orders. Identification of any individual pursuant to this Protective Order does not make that individual available for deposition or any other form of discovery outside of the restrictions and procedures of the Federal Rules of Civil Procedure, the Local Rules for the United States District Court for the Southern District of California, or the Court's own orders. *17 IT IS SO ORDERED. EXHIBIT A I, ____________________, acknowledge and declare that I have received a copy of the Protective Order (“Order”) in FastVDO LLC v. AT&T Mobility LLC, et al., Case No. 16-cv-00385-H-WVG (LEAD CASE), United States District Court, District of Southern California. Having read and understood the terms of the Order, I agree to be bound by the terms of the Order and consent to the jurisdiction of said Court for the purpose of any proceeding to enforce the terms of the Order. Name of individual: __________________________________________________ Present occupation/job description: ________________________________________ __________________________________________________ __________________________________________________ Name of Company or Firm: __________________________________________________ Address: __________________________________________________ Dated: ____________________ __________________________________________________ [Signature] Footnotes [1] If the need arises, FastVDO may request that a Producing Party allow up to five consultants to access Discovery Material designated as “CONFIDENTIAL—OUTSIDE ATTORNEYS' EYES ONLY—SOURCE CODE.” Defendants agree to meet and confer in good faith if FastVDO makes such a request. However, if the parties are unable to reach agreement, FastVDO may seek relief from the Court. [2] To the extent the parties agree or the court orders that additional FastVDO consultants may have access to a Producing Party's source code pursuant to Paragraph 10(c)(ii), the number of permitted paper copies shall be increased to be coextensive with the number of consultants that have access to the Producing Party's source code.