ROBERT S. LASNIK, District Judge.
Plaintiffs Infernal Technology, LLC ("Infernal") and Terminal Reality, Inc. ("Terminal") (collectively "Plaintiffs" or "Receiving Party") and non-party Bungie Inc. ("Bungie"), having met and conferred, submit the following Stipulation and [Proposed] Protective Order, and ask the Court to enter an order consistent with this Stipulation.
WHEREAS, Infernal and Terminal are the Plaintiffs and Activision Blizzard, Inc. ("Activision") is the Defendant in Infernal Technologies, Inc., et al. v. Activision Blizzard, Inc., Civil Action No. 18-cv-1397-M (the "Action"), pending in the United States District Court for the Northern District of Texas (the "Texas Court");
WHEREAS, on February 19, 2019, counsel for Plaintiffs served a subpoena originating from the Action in the United States District Court for the Northern District of Texas directing Bungie to produce copies of confidential, commercially sensitive source code for its Destiny products (herein, referred to as "Highly Confidential Information");
WHEREAS, Plaintiffs and Bungie (together, the "Parties") agree that the United States District Court for the Western District of Washington is the court where compliance is required pursuant to Fed. R. Civ. P. 45 and thus this Court has authority and jurisdiction to enter this Stipulation and Protective Order;
WHEREAS, the parties agree that public dissemination and disclosure of the Highly Confidential Information could injure or damage Bungie or place Bungie at a competitive disadvantage;
WHEREAS, a Protective Order has been entered by the United States District Court for the Northern District of Texas in the Action (Document No. 38) (the "Texas Protective Order");
WHEREAS, Bungie as a third-party seeks protections for its discovery of Highly Confidential Information in addition to those set forth in the Texas Protective Order:
WHEREAS, subject to the objections in Bungie's Responses and Objections to the Subpoena to Produce Documents or Permit Inspection, dated March 15, 2019, Bungie will make certain Highly Confidential Information available for inspection or production by the parties' outside counsel subject to additional specific security procedures; and
WHEREAS, the parties agree to the following supplemental restrictions and procedures under Fed. R. Civ. P. 26(c) to protect Bungie's Highly Confidential Information and to provide the parties to the Action reasonably necessary access to that Highly Confidential Information, in addition to those set forth by the Texas Protective Order.
NOW, THEREFORE, counsel for the Parties stipulate and agree as follows:
1. All Bungie source code available for inspection in response to Plaintiffs' subpoena, shall be designated as "RESTRICTED HIGHLY CONFIDENTIAL NON-PARTY SOURCE CODE," subject to the procedures, restrictions and protections of Paragraphs 10-13 of the Texas Protective Order for "RESTRICTED CONFIDENTIAL SOURCE CODE" and the additional procedures, restrictions and protections stated below. "DESIGNATED MATERIAL" as used in the Texas Protective Order shall also include material designated "RESTRICTED HIGHLY CONFIDENTIAL NON-PARTY SOURCE CODE." Bungie Highly Confidential Information shall not be used for any purposes other than the prosecution and defense of the Texas Action and shall not be given, shown, made available, discussed or otherwise communicated in any manner, either directly or indirectly, to any person not authorized to receive the information under the terms of this Stipulated Supplemental Protective Oder.
2. Plaintiffs shall provide Bungie with written notice of intent to inspect Bungie's source code at least five business days in advance of such inspection. Bungie shall make its source code available for inspection in accordance with this Supplemental Protective Order.
3. Bungie will make source code available for inspection in native electronic format at the offices of Wilson, Sonsini, Goodrich, and Rosati, 900 S. Capital of Texas Hwy Las Cimas IV, Fifth Floor, Austin, Texas 78746, subject to the provisions of this Supplemental Protective Order, or at a different location agreed to by the Plaintiffs and Bungie. Unless the Parties agree otherwise, Bungie will load its source code on two non-networked computers that are password protected and maintained in a secure, locked area, in a private room (the "Review Room"). The non-networked computers shall not be connected to a phone line or have wireless or other external electronic access.
4. Unless the Parties agree otherwise, source code inspection may be conducted during normal business hours, 9:00 am to 5:30 pm local time, Monday through Friday (excluding federal holidays). The Receiving Party shall have 60 hours to inspect the source code within a three week period.
5. Bungie shall install the commercially available software tools listed in paragraph 5.a for viewing and searching source code on the source code computer(s) containing source code at the requested date and time of inspection provided, however, that such software tools are in compliance with all of the terms, conditions, and protections herein. Plaintiffs are responsible for the cost of and for obtaining any necessary licenses for any such software tools. Plaintiffs shall provide Bungie with a copy of the software tools listed in paragraph 5.a to facilitate review of the source code at least five business days prior to the commencement of inspection. The software tools provided by Plaintiffs shall not be modified by Bungie prior to or after installation on the source code computer. Use of any input/output device (e.g., USB memory stick, CDs, floppy disk, portable hard drive, etc.) is prohibited while accessing the computer containing the source code. The Receiving Party is permitted to take only handwritten notes, if any, during the source code inspection. No provision of this section gives Bungie the right to inspect or review any handwritten notes or other work product of the Receiving Party. Similarly, no provision of this section limits and/or waives any Bungie rights under the Federal Rules of Civil Procedure or the common law to challenge the propriety of the Receiving Party's designation of material as privileged, work product, or subject to other protection. Furthermore, if Bungie has good cause to believe that the provisions of this Protective Order have been violated, Bungie may request that the Court conduct an in-camera review of said handwritten notes.
6. Bungie shall provide the receiving Party with information explaining how to start, log on to, and operate the stand-alone computer(s) in order to access the produced Source Code Material on the non-networked computers. The producing Party will produce Source Code Material in computer searchable format on the non-networked computer(s) as described above.
7. Bungie shall be entitled to have one person monitor from outside of the Review Room Plaintiffs' review personnel's actions in the Review Room to ensure compliance with the provisions of this Order governing source code provided, however, that said person shall not be permitted to view the screen of the source code computer(s). The source code inspection may be monitored by Bungie's outside attorneys and/or others working with such counsel in a manner that will not interfere with confidential, privileged or protected communications.
8. No person shall copy, e-mail, transmit, upload, download, print, photograph, cut and paste, or otherwise duplicate any portion of Bungie's Highly Confidential Information designated as "RESTRICTED HIGHLY CONFIDENTIAL NON-PARTY SOURCE CODE", except as follows:
consultants who have been approved to access source code; (iii) the site where any deposition is taken (so long as the persons present are eligible to view RESTRICTED HIGHLY CONFIDENTIAL NON-PARTY SOURCE CODE); (iv) this Court or the Texas Court (in pleading filed under seal or in open court in the presence of only persons eligible to view RESTRICTED HIGHLY CONFIDENTIAL NON-PARTY SOURCE CODE); or (v) any intermediate location necessary to transport the information to a hearing, trial or deposition.
9. The Receiving Party may use Highly Confidential Information including source code in connection with the Action as follows: (1) in infringement contentions served in connection with the Action; (2) at a deposition, provided that it will only make as many copies as necessary no earlier than 72 hours prior to such deposition, and only of the specific pages it intends to actually use at the deposition; or (3) in a filing in this Court or the Texas Court in accordance with the terms of this order provided that the Receiving Party notifies Bungie when such filing is made; or (4) in this Court or the Texas Court pursuant to the terms herein.
10. Source Code Material may only be transported by the receiving Party at the direction of a person authorized under paragraph 12 below to another person authorized under paragraph 12 below, on paper via secure and reliable hand carry. Source Code Material may not be transported or transmitted electronically over a network of any kind, including a LAN, an intranet, or the Internet except as provided in paragraph 8(e) above and as necessary to create documents which, pursuant to the Court's rules, procedures and order, must be filed or served electronically.
11. Notwithstanding any other provision herein, Bungie's "RESTRICTED HIGHLY CONFIDENTIAL NON-PARTY SOURCE CODE" material shall not leave the geographic boundaries of the continental United States.
12. Only the following individuals shall have access to "RESTRICTED HIGHLY CONFIDENTIAL NON-PARTY SOURCE CODE" material, absent the express written consent of Bungie or further court order:
13. The Receiving Party may designate retained expert consultants (either testifying or non-testifying) ("Consultants") to have access to the Highly Confidential Information under this Protective Order if the consultants are: (i) neither employees of a party nor anticipated to become employees of a party in the near future; and (ii) engaged by or on behalf of a party as bona fide consultants or experts for purposes of this Action. The following procedures shall govern the designation of Consultants under this Protective Order:
Highly Confidential Information.
14. Any attorney, consultant, witness, or other person associated with Plaintiffs who views any Bungie Highly Confidential Information prior to trial shall not participate, directly or indirectly, in any patent application prosecution, or any post grant review proceeding (including Inter Partes Review Proceedings before the Patent Trial and Appeal Board) for the particular technology field at issue in the patents-in-suit (i.e., rendering lighting and shadows in computer graphic simulation) and concerning a patent subject to amendment, nor consult with attorneys or experts participating in any such prosecution or post-grant review proceeding and shall not participate, directly or indirectly, in analysis of patents being considered to be acquired, acquired, exclusively licensed, or purchased by Plaintiffs until at least three (3) years have passed from the conclusion of the Action. For the avoidance of doubt, this provision does not prohibit any attorney, consultant, witness, or other person associated with Plaintiffs who views any Bungie Highly Confidential Information from participating in a post grant reviewing proceeding (including Inter Partes Review Proceeding) challenging the patents-in-suit.
15. All persons who have access to information pursuant to this Supplemental Protective Order shall be subject to the jurisdiction of this Court for purposes of enforcing this Supplemental Protective Order.
16. The Parties agree that the provisions of this Stipulated Supplemental Protective Order may be modified by the Court upon a showing of good cause. In the event that a dispute concerning the provisions of this Stipulated Supplemental Protective Order arises between the Parties, the Parties agree to meet and confer within 5 business days of said dispute arising. If, after meeting and conferring, the Parties are unable to resolve their dispute, the Parties agree to jointly seek resolution of the dispute from the Court.
IT IS SO STIPULATED.
IT IS SO ORDERED.
I, _________________________________________ [print or type full name], of ___________________________ hereby affirm that:
Information, including documents and things designated as "Confidential," "CONFIDENTIAL—OUTSIDE COUNSEL ONLY," "Restricted Confidential—Source Code," or "RESTRICTED HIGHLY CONFIDENTIAL NON-PARTY SOURCE CODE" as defined in the Texas Protective Order or this Protective Order (collectively, the "Protective Orders") entered in relation to Infernal Technology, LLC and Terminal Reality, Inc v. Activision Blizzard, Inc., Civil Action No. 3:18-cv-1397-M, pending in the United States District Court for the Northern District of Texas (the "Action"), will be provided to me pursuant to the terms and restrictions of the Protective Orders.
I have been given a copy of and have read the Protective Orders.
I am familiar with the terms of the Protective Orders and I agree to comply with and to be bound by their terms. I submit to the jurisdiction of this court for enforcement of the Protective Orders.
I agree not to use any Confidential, CONFIDENTIAL—OUTSIDE COUNSEL ONLY, Restricted Confidential—Source Code information, or Restricted Highly Confidential Non-Party Source Code disclosed to me pursuant to the Protective Orders except for purposes of the Action and not to disclose any of this information to persons, other than those specifically authorized by the Protective Orders, without the express consent of the Party who designated the information as confidential or by order of the Court.
I understand that I am to retain all documents or materials designated as or containing Confidential, CONFIDENTIAL—OUTSIDE COUNSEL ONLY, Restricted Confidential— Source Code information, or Restricted Highly Confidential Non-Party Source Code in a secure manner, and that all such documents and materials are to remain in my personal custody until the completion of my assigned duties in this matter, whereupon all such documents and materials, including all copies thereof, and any writings prepared by me containing any Confidential, CONFIDENTIAL—OUTSIDE COUNSEL ONLY, Restricted Confidential—Source Code information, or Restricted Highly Confidential Non-Party Source Code are to be returned to counsel who provided me with such documents and materials.
CITY, STATE WHERE SWORN AND SIGNED:
