Medimpact Healthcare Systems, Inc. v. IQVIA Holdings Inc.

Opinion

1 2 3 4 5 6 7 10 | MEDIMPACT HEALTHCARE Case No. 19-cv-01865-GPC (DEB) SYSTEMS, INC., a California 1] corporation: MEDIMPACT PROTECTIVE ORDER INTERNATIONAL LLC, a California 12 || limited liability compan - and MEDIMPACT INT RNATIONAL 13 | HONG KONG LTD., a Hong Kong company, 14 15 Plaintiffs, 1 6 Vv. IQVIA INC., a Connecticut 17 corporation ; IQVIA Ltd., a UK company; IQVIA AG, a Swiss 18 || company; OMAR GHOSHEH, individually; and AMIT SADANA, 19 | individually, and DOES 1-20, 20 Defendants. 21 22 23 24 25 26 27 28 Case No. 19-cv-01865-GPC (DEB) PROTECTIVE ORDER

] The Court recognizes that at least some of the documents and information 2 || (“materials”) being sought through discovery in the above-captioned action are, for 3 || competitive reasons, normally kept confidential by the Parties. The Parties have 4 || agreed to be bound by the terms of this Protective Order (“Order’’) in this action. 5 The materials to be exchanged throughout the course of the litigation between 6 || the parties may contain trade secret or other confidential research, technical, cost, 7 || price, marketing or other commercial information, as is contemplated by Federal 8 || Rule of Civil Procedure 26(c)(1)(G). The purpose of this Order is to protect the 9 || confidentiality of such materials as much as practical during the litigation. 10 || THEREFORE: 12 1. The term “confidential information” will mean and include information 13 | contained or disclosed in any materials, including documents, portions of documents, 14 | answers to interrogatories, responses to requests for admissions, trial testimony, 15 || deposition testimony, and transcripts of trial testimony and depositions, including 16 || data, summaries, and compilations derived therefrom that is deemed to be 17 || confidential information by any Party or subpoenaed non-party to which it belongs. 18 2. The term “materials” will include, but is not be limited to: documents; 19 || correspondence; memoranda; bulletins; blueprints; specifications; customer lists or 20 || other material that identify customers or potential customers; price lists or schedules 21 || or other matter identifying pricing; minutes; telegrams; letters; statements; cancelled 22 || checks; contracts; invoices; drafts; books of account; worksheets; notes of 23 || conversations; desk diaries; appointment books; expense accounts; recordings; 24 || photographs; motion pictures; compilations from which information can be obtained 25 || and translated into reasonably usable form through detection devices; sketches; 26 27 28

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1 || drawings; notes (including laboratory notebooks and records); reports; instructions; 2 || disclosures; other writings; models and prototypes and other physical objects. 3 3. The term “counsel” will mean (a) outside counsel of record (including 4 | other attorneys, paralegals, secretaries, and other support staff employed in the law 5 || firms identified herein: Jones Day, Dentons US LLP, Klinedinst PC, Pillsbury 6 || Winthrop Shaw Pittman LLP, Quinn Emanuel Urquhart & Sullivan, LLP, and Baker 7 || & McKenzie LLP); (b) in-house litigation counsel; (c) other in-house counsel whose 8 || responsibilities do not include operational business or competitive decision-making 9 || authority, provided disclosure to counsel covered by subparagraphs (b) and (c) hereof 10 || is reasonably necessary for the prosecution or defense and conduct of this litigation, 11 | and (d) Court-approved in-house counsel for Defendants—currently Laura Kibbe, 12 || Lisa Katz, and Maureen Nakly—pursuant to the Court’s February 4, 2021 Order at 13 || ECF No. 173. 15 4. Each Party or subpoenaed non-party to this litigation that produces or 16 || discloses any materials, answers to interrogatories, responses to requests for 17 || admission, trial testimony, deposition testimony, and transcripts of trial testimony 18 || and depositions, or information that the producing party believes should be subject 19 || to this Protective Order (hereinafter, the “Producing Party’) may designate the same 20 || as “CONFIDENTIAL,” “ATTORNEYS’ EYES ONLY,” or “OUTSIDE COUNSEL 21 | AND COURT APPROVED IN-HOUSE COUNSEL ONLY.” 22 (a) Designation as “CONFIDENTIAL”: Any Producing Party may 23 designate information as “CONFIDENTIAL” only if, in the good faith 24 belief of such Producing Party and its counsel, the unrestricted 25 disclosure of such information could be potentially prejudicial to the 26 business or operations of such designating party. 27 (b) Designation as ‘ATTORNEYS’ EYES ONLY”: Any Producing Party 28 may designate information as “ATTORNEYS’ EYES ONLY” only if, 2 Ao NT 10 ne AIOLE □□□ □□□□□□

] in the good faith belief of such Producing Party and its counsel, the 2 information is among that considered to be highly sensitive by the 3 designating party, including but not limited to research, technical, 4 commercial, financial, or pricing information, or such other proprietary 5 or sensitive business and commercial information that is not publicly 6 available, disclosure of which could reasonably result in commercial, 7 financial, or business harm. 8 (c) Designation as “OUTSIDE COUNSEL AND COURT APPROVED 9 IN-HOUSE COUNSEL ONLY”: Any Producing Party may designate 10 information as “OUTSIDE COUNSEL AND COURT APPROVED IN- 1] HOUSE COUNSEL ONLY” only if, in the good faith belief of such 12 Producing Party and its counsel, the information would disclose trade 13 secrets or Source Code. 14 “Source Code” includes extremely sensitive information or items 15 representing computer code and associated comments and revision 16 histories, formulas, engineering specifications, or schematics that define 17 or otherwise describe in detail the algorithms or structure of software or 18 hardware designs, disclosure of which to another Party or non-party 19 would create a substantial risk of serious harm that could not be avoided 20 by less restrictive means. To the extent production of Source Code 21 becomes necessary in this case, a Producing Party may designate Source 22 Code as “OUTSIDE COUNSEL AND COURT APPROVED IN- 23 HOUSE COUNSEL ONLY” if it comprises or includes confidential, 24 proprietary or trade secret Source Code. 25 (d) Ifa Producing Party chooses to designate material “ATTORNEYS’ 26 EYES ONLY” or “OUTSIDE COUNSEL AND COURT APPROVED 27 IN-HOUSE COUNSEL ONLY” it must mark those documents 28 provisionally with that designation to give the receiving party ye Ao NT 10 ne AIOLE □□□ □□□□□□

1 (hereinafter, the “Receiving Party’’) a reasonable opportunity to review 2 and evaluate whether the Receiving Party agrees with the designation. 3 The Producing Party will also identify in a cover letter to the production, 4 by bates numbers, all documents that have been so marked. If the 5 Receiving Party has questions about and/or objections to any of the 6 provisional designations it may proceed to address any such questions 7 and/or objections according to the provision of Paragraph 17 hereof. In 8 the absence of notice by the Receiving Party of questions about and/or 9 objections to the designations “ATTORNEYS’ EYES ONLY” or 10 “OUTSIDE COUNSEL AND COURT APPROVED IN-HOUSE 1] COUNSEL ONLY,” the designation will be considered final for 12 purposes of any use of such documents in the matter. 13 5. In the event the Producing Party elects to produce materials for 14 | inspection, no marking need be made by the Producing Party in advance of the initial 15 || inspection. For purposes of the initial inspection, all materials produced will be 16 || considered as “OUTSIDE COUNSEL AND COURT APPROVED IN-HOUSE 17 || COUNSEL ONLY,” and must be treated as such pursuant to the terms of this Order. 18 || Thereafter, upon selection of specified materials for copying by the inspecting party, 19 || the Producing Party must, within a reasonable time prior to producing those materials 20 || to the inspecting party, mark the copies of those materials that contain confidential 21 || information with the appropriate confidentiality marking. 22 6. Whenever a deposition taken on behalf of any Party involves a 23 || disclosure of confidential information of any Party or subpoenaed non-party: 24 (a) the deposition or portions of the deposition must be designated as 25 containing confidential information subject to the provisions of this 26 Order; such designation must be made on the record whenever possible, 27 but a Party or subpoenaed non-party may designate portions of 28 depositions as containing confidential information after transcription of

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] the proceedings; a Party or subpoenaed non-party will have until 2 fourteen (14) days after receipt of the deposition transcript to inform the 3 other Party or Parties to the action of the portions of the transcript to be 4 designated “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” or 5 “OUTSIDE COUNSEL AND COURT APPROVED IN-HOUSE 6 COUNSEL ONLY.” 7 (b) the disclosing Party or subpoenaed non-party will have the right to 8 exclude from attendance at the deposition, during such time as the 9 confidential information is to be disclosed, any person other than the 10 deponent, counsel (including their staff and associates), the court 1] reporter, and the person(s) agreed upon pursuant to Paragraphs 8-9 (for 12 “OUTSIDE COUNSEL AND COURT APPROVED IN-HOUSE 13 COUNSEL ONLY” information), Paragraph 10 (for “ATTORNEYS’ 14 EYES ONLY” information), Paragraph 11 (for “CONFIDENTIAL” 15 information) below; 16 (c) the originals of the deposition transcripts and all copies of the deposition 17 must bear the legend “CONFIDENTIAL” or “ATTORNEYS’ EYES 18 ONLY” or “OUTSIDE COUNSEL AND COURT APPROVED IN- 19 HOUSE COUNSEL ONLY” as appropriate, and the original or any 20 copy ultimately presented to a court for filing must not be filed unless it 21 can be accomplished under seal, identified as being subject to this Order, 22 and protected from being opened except by order of this Court. 23 7. All confidential information designated as “CONFIDENTIAL” or 24 | “ATTORNEYS”? EYES ONLY” or “OUTSIDE COUNSEL AND COURT 25 || APPROVED IN-HOUSE COUNSEL ONLY” must not be disclosed by the 26 || Receiving Party to anyone other than those persons designated within this Order and 27 || must be handled in the manner set forth below and, in any event, must not be used 28

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] || for any purpose other than in connection with this litigation, unless and until such 2 || designation is removed either by agreement of the Parties, or by order of the Court. 3 8. Information designated “OUTSIDE COUNSEL AND COURT 4 | APPROVED IN-HOUSE COUNSEL ONLY” may only be viewed by outside 5 || counsel of the Receiving Party as defined in Paragraph 3(a); Court-approved in-house 6 || counsel as defined in Paragraph 3(d); witnesses (pursuant to the terms of Paragraph 7 || 8(a)-(b)); independent experts (pursuant to the terms of Paragraph 8(c)); employees 8 || of a party’s insurer (pursuant to the terms of Paragraph 8(d)); and the individuals 9 || described in Paragraphs 8(e)-(1), under the conditions set forth in this Paragraph and 10 | Subparagraphs. 1] (a) Witnesses: A witness who has been subpoenaed or noticed for 12 deposition, trial testimony, or other court proceeding in the above- 13 captioned case not otherwise authorized to view the information 14 designated “OUTSIDE COUNSEL AND COURT APPROVED IN- 15 HOUSE COUNSEL ONLY” in question, has the right to review such 16 information during that witness’ testimony at a deposition, hearing, or 17 trial in the above-captioned case, or in preparation for the same; 18 provided that: 19 (1) the name of the witness appears on the document either as an 20 author or recipient thereof or in the body of the document; 21 (2) the witness is a current employee of the Producing Party; 22 (3) the witness is a former employee of the Producing Party who was 23 employed at the time the document was created (provided the 24 former employee is not currently employed by a competitor of the 25 Producing Party or is or was a Defendant in this matter); or 26 (4) counsel for the Producing Party expressly authorizes in writing 27 disclosure of the information to the witness prior to its disclosure. 28

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] (b) Any witness authorized pursuant to subparagraphs (2, 3, or 4) of 2 paragraph 8(a) to review information designated “OUTSIDE 3 COUNSEL AND COURT APPROVED IN-HOUSE COUNSEL 4 ONLY” may only review such information provided that: 5 (1) _ the disclosure is made for the purpose of advancing the disclosing 6 Party’s claims or defenses, and for no other purposes; 7 (2) the witness is not permitted to retain the information designated 8 “OUTSIDE COUNSEL AND COURT APPROVED IN-HOUSE 9 COUNSEL ONLY” after the witness is examined regarding the 10 Protected Material, unless the witness was previously authorized 1] to possess the information prior to the examination; 12 (3) the witness signs the Exhibit A; and 13 (4) the witness is explicitly informed by counsel for the Party seeking 14 to use the information designated “OUTSIDE COUNSEL AND 15 COURT APPROVED IN-HOUSE COUNSEL ONLY” that 16 signing Exhibit A means that the witness is forbidden from 17 disclosing the information designated “OUTSIDE COUNSEL 18 AND COURT APPROVED IN-HOUSE COUNSEL ONLY” 19 except as permitted under this Order and that he or she is subject 20 to the Court’s jurisdiction for the purposes of enforcing this 21 Order. 22 (c) Independent Experts: Any independent expert (testifying or 23 otherwise) who is to receive or review confidential information must 24 sign a copy of the form attached hereto as Exhibit A in advance of seeing 25 or receiving such confidential information. The right of any independent 26 expert, including support staff employed by such expert, to receive 27 confidential information designated “OUTSIDE COUNSEL AND 28 COURT APPROVED IN-HOUSE COUNSEL ONLY” will be subject 8) Ao NT 10 ne AIOLE □□□ □□□□□□

] to the advance approval of such expert by the Producing Party or by 2 permission of the Court. The Party seeking approval of an independent 3 expert to access such confidential information must provide the 4 Producing Party with the name and curriculum vitae of the independent 5 expert. Any objection by the Producing Party to an independent expert 6 receiving confidential information designated “OUTSIDE COUNSEL 7 AND COURT APPROVED IN-HOUSE COUNSEL ONLY” must be 8 made in writing within fourteen (14) days following receipt of the 9 identification of the expert to whom access is proposed. “OUTSIDE 10 COUNSEL AND COURT APPROVED IN-HOUSE COUNSEL 1] ONLY” information may be disclosed to an independent expert if the 12 fourteen (14) day period has passed and no objection has been made. 13 The approval of independent experts’ access to “OUTSIDE COUNSEL 14 AND COURT APPROVED IN-HOUSE COUNSEL ONLY” 15 information must not be unreasonably withheld; 16 (d) Employees of a Party’s Insurer: Relevant employees of any insurer to 17 a Party may review information designated “OUTSIDE COUNSEL 18 AND COURT APPROVED IN-HOUSE COUNSEL ONLY” to the 19 extent that such disclosure is reasonably necessary for the prosecution 20 or defense of that Party in this action and who have signed Exhibit A; 21 (e) Special masters, mediators, or other third parties who are appointed by 22 the Court or retained by the Parties for settlement purposes or resolution 23 of discovery or other disputes and their necessary personnel and, in the 24 case of persons retained by the Parties, who have signed Exhibit A; 25 (f) | Any other person agreed to by the designating party in writing; 26 (g) Persons engaged by a Party’s counsel to furnish litigation support 27 services, such as, but not limited to, E-discovery vendors, technological 28 support staff, graphic consultants, jury consultants, jury research

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] participants, and office support staff, in this action, but not including the 2 Party receiving the information, or any director, officer, agent or 3 employee of the Party; 4 (h) Pursuant to the restrictions set forth in Paragraphs 8 and 9 of this Order, 5 officers of the Court, members of the jury; and 6 (i) Any other person to whom the Court compels disclosure of the 7 designated “OUTSIDE COUNSEL AND COURT APPROVED IN- 8 HOUSE COUNSEL ONLY” or to whom disclosure is required by law. 9 9. Disclosure of Source Code information is subject to the following terms: 10 (a) To the extent production of Source Code becomes necessary to the 1] prosecution or defense of the case, a Producing Party may designate 12 Source Code as “OUTSIDE COUNSEL AND COURT APPROVED 13 IN-HOUSE COUNSEL ONLY” if it comprises or includes confidential, 14 proprietary, and/or trade secret Source Code. Nothing in this Protective 15 Order shall be construed as a representation or admission that Source 16 Code is properly discoverable, or to obligate any Party to produce any 17 Source Code. Source Code includes human-readable programming 18 language text that defines software. Text files containing Source Code 19 shall hereinafter be referred to as “Source Code files.” Source Code files 20 shall include, but are not limited to, files containing Source Code in “C,” 21 “C++,” BREW, Java ME, J2ME, assembler programming languages, 22 and other human readable text programming languages. Source Code 23 files further include “include files,” “make” files, “link” files, and other 24 human-readable text files used in the generation and/or building of 25 software directly executed on a microprocessor or micro-controller. 26 Unless otherwise ordered by the Court or permitted in writing by the 27 Producing Party, discovery information designated as “OUTSIDE 28 COUNSEL AND COURT APPROVED IN-HOUSE COUNSEL

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1 ONLY” shall be subject to the provisions set forth herein, and may be 2 disclosed, subject to the provisions set forth below, solely to: 3 (1) the Receiving Party’s outside counsel in this Action, as well as 4 such of immediate paralegals and staff and any copying or clerical 5 litigation support services working at the direction of such 6 counsel, paralegals, and staff (1) who are not involved in 7 competitive decision-making, as defined by Brown Bag Software 8 v. Symantec Corp., 960 F.2d 1465, 1470 (9th Cir. 1992), (as 9 opposed to legal advice) on behalf of a Party or a competitor of a 10 Party; and (2) to whom it is reasonably necessary to disclose the 1] information for this litigation; 12 (2) | Court-approved in-house counsel as defined in Paragraph 3(d); 13 (3) experts of the Receiving Party, retained for this matter, provided 14 that disclosure is only to the extent necessary to perform such 15 work and provided that: (1) such Expert has agreed to be bound 16 by the provisions of the Protective Order by signing a copy of 17 Exhibit A; (2) such Expert is not involved in competitive 18 decision-making, as defined by Brown Bag Software v. Symantec 19 Corp., 960 F.2d 1465, 1470 (9th Cir. 1992), on behalf of a Party 20 or a competitor of a Party; (3) to the extent required by U.S. 21 government export control and economic sanctions laws, 22 including the U.S. Export Administration Regulations, such 23 Expert accesses the Source Code in the United States only, and 24 does not transport such Source Code to or access it from any 25 foreign jurisdiction; and (4) no unresolved objections to such 26 disclosure exist after proper notice has been given to all Parties; 27 (4) professional vendors to whom disclosure is reasonably necessary 28 for this litigation and who have signed Exhibit A;

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1 (5) the Court and its personnel; 2 (6) court reporters and their staff who have signed Exhibit A, with 3 the exception that printouts of Source Code used as exhibits in a 4 deposition shall not be provided to the court reporter or their staff; 5 (7) any mediator who is assigned to hear this matter, and his or her 6 staff, subject to their agreement to maintain confidentiality to the 7 same degree as required by this Protective Order; and 8 (8) any other person with the prior written consent of the Producing 9 Party. 10 (b) Any Source Code produced by the Producing Party shall be made 1] available for inspection in electronic format at a designated facility of 12 the Producing Party’s vendor, or any other location mutually agreed by 13 the Parties. Any Source Code files that are produced by the Producing 14 Party will be made available for inspection at the San Diego office of 15 their outside counsel, Pillsbury Winthrop Shaw Pittman LLP, or any 16 other location agreed by the Parties. Source Code will be made available 17 for inspection between the hours of 9 a.m. and 4:30 p.m. on business 18 days (1.e., weekdays that are not Federal holidays), although the Parties 19 will be reasonable in accommodating reasonable requests to conduct 20 inspections at other times. 21 (c) Prior to the first inspection of Source Code, the Receiving Party shall 22 provide thirty (30) days’ notice of the Source Code that it wishes to 23 inspect. Plaintiffs made their first request to inspect Source Code on 24 November 3, 2020. Subsequent requests by the Receiving Party for 25 additional Source Code may be made on twenty (20) days’ notice and 26 the Parties will work together to accommodate the Requesting Party’s 27 request and the Responding Party’s needs in making the requested 28 Source Code available in a timely manner.

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1 (d) For Source Code that has already been made available for review, the 2 Receiving Party shall provide two (2) days’ notice prior to any 3 additional requests to review that Source Code, although more notice is 4 preferred, and less notice will be considered by the Producing Party if 5 circumstances allow the Producing Party to make such accommodation. 6 (e) Source Code that is designated “OUTSIDE COUNSEL AND COURT 7 APPROVED IN-HOUSE COUNSEL ONLY” shall be produced for 8 inspection and review subject to the following provisions, unless 9 otherwise agreed by the Producing Party: 10 (1) All Source Code shall be made available by the Producing Party 1] to the Receiving Party’s counsel and/or experts in a secure room 12 on a secured computer in a configuration deemed secure by the 13 Producing Party, as necessary and appropriate to prevent and 14 protect against any unauthorized copying, transmission, removal 15 or other transfer of any Source Code outside or away from the 16 computer on which the Source Code is provided for inspection 17 (the “Source Code Computer” in the “Source Code Review 18 Room’). The Producing Party shall install tools that are sufficient 19 for viewing and searching the Source Code produced, on the 20 platform produced, if such tools exist and are presently used in 21 the ordinary course of the Producing Party’s business. The 22 Receiving Party’s counsel and/or experts or consultants may 23 request that commercially available software tools for viewing 24 and searching Source Code be installed on the secured computer, 25 provided, however, that (a) the Receiving Party possesses an 26 appropriate license to such software tools; (b) the Producing Party 27 approves such software tools, which approval shall not be 28 unreasonably withheld; and (c) such other software tools are

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] reasonably necessary for the Receiving Party to perform its 2 review of the Source Code consistent with all of the protections 3 herein. The Receiving Party must provide the Producing Party 4 with access to such licensed software tool(s) at least seven (7) 5 days in advance of the date upon which the Receiving Party 6 wishes to have the additional software tools available for use on 7 the Source Code Computer. 8 (2) No recordable media or recordable devices, including without 9 limitation sound recorders, computers, tablets, cellular 10 telephones, peripheral equipment, cameras, CDs, DVDs, or 1] drives of any kind, shall be permitted into the Source Code 12 Review Room. 13 (3) The Receiving Party’s counsel and/or experts or consultants shall 14 be entitled to take notes relating to the Source Code but may not 15 copy the Source Code into the notes and may not take such notes 16 electronically on the Source Code Computer itself or any other 17 computer. Each page of any such notes containing Source Code 18 information or (and any additional notes, analyses, or descriptions 19 relating thereto) must be marked as “OUTSIDE COUNSEL AND 20 COURT APPROVED IN-HOUSE COUNSEL ONLY.” 21 (4) The Producing Party may visually monitor the activities of the 22 Receiving Party’s representatives during any Source Code 23 review, but only to ensure that no unauthorized electronic records 24 of the Source Code and no information concerning the Source 25 Code is being created or transmitted in any way. 26 (5) Access to and review of the Source Code shall be strictly for the 27 purposes of investigating the claims and defenses at issue in this 28 action. Unless otherwise agreed by the Parties in writing, no

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] person shall review or analyze any Source Code for purposes 2 unrelated to this action, and no person may use any knowledge 3 gained as a result of reviewing the Source Code in this action in 4 any other pending or future dispute, proceeding or litigation 5 (although Source Code can be used in appeal or writ proceedings 6 arising from this action). 7 (6) Nocopies of all or any portion of the Source Code may leave the 8 Source Code Review Room except as otherwise provided herein. 9 Further, no other written or electronic record of the Source Code 10 1S permitted except as otherwise provided herein. The Source 1] Code Computer shall be equipped to allow printing of the Source 12 Code made available for inspection by the Producing Party. 13 Copies of Source Code shall only be made on watermarked pre- 14 Bates numbered paper, which shall be provided by the Producing 15 Party. Under no circumstances are original printouts of the Source 16 Code to be made except for directly onto the watermarked and 17 numbered sides of the paper provided by the Producing Party. 18 Printouts may be made only when necessary to prepare court 19 filings or pleadings, to prepare a testifying expert’s expert report, 20 or for use in a deposition, and for no other purpose (such as to 21 review at a later time elsewhere). Counsel for the Producing Party 22 will keep the original printouts, and shall provide copies of such 23 original printouts to counsel for the Receiving Party within one 24 (1) business day of (1) any request by the Receiving Party, or 25 (2) otherwise being notified that such original printouts have been 26 made or designated. Counsel may request up to 5 copies of each 27 original printout. All printed Source Code shall be logged by 28 Receiving Party’s counsel and/or other personnel of a Receiving aE Ao NT 10 ne AIOLE □□□ □□□□□□

] Party. No additional electronic copies of the Source Code shall be 2 provided by the Producing Party. Any printed portion that 3 consists of more than twenty-five (25) pages of a continuous 4 block of Source Code shall be subject to the Receiving Party 5 demonstrating good cause, and the burden shall be on the 6 Receiving Party to demonstrate need for such a printed copy. The 7 Receiving Party may print out no more than 5% or two hundred 8 (200) pages of the total Source Code, whichever is greater, absent 9 good cause. If the Receiving Party deems it necessary to print 10 more than 5% or two hundred (200) pages of the total Source 1] Code, whichever is greater, or more than twenty-five (25) pages 12 of a continuous block of Source Code, the Receiving Party and 13 the Producing Party shall meet and confer pursuant to CivLR 14 26.1.a to determine the appropriate amount of additional pages to 15 be printed. If, after meeting and conferring, the Producing Party 16 and the Receiving Party cannot come to an agreement as to 17 whether the requested additional pages of printed Source Code 18 are narrowly tailored for a permitted purpose, the Receiving Party 19 shall be entitled to seek a Court resolution by contacting the 20 assigned magistrate judge’s chambers within thirty (30) days of 21 the Receiving Party’s request to raise the dispute. The burden 22 shall be on the Receiving Party to demonstrate that the requested 23 additional pages are no more than is reasonably necessary for a 24 permitted purpose and not merely printed for the purposes of 25 review and analysis elsewhere. The Receiving Party shall not 26 print Source Code in order to review blocks of Source Code 27 elsewhere in the first instance, i.e., as an alternative to reviewing 28 that Source Code electronically on the Source Code Computer, as

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] the Parties acknowledge and agree that the purpose of the 2 protections herein would be frustrated by printing portions of 3 code for review and analysis elsewhere, and that printing is 4 permitted only when necessary to prepare court filings or 5 pleadings, to prepare a testifying expert’s expert report, or for use 6 in a deposition. The printed pages shall constitute part of the 7 Source Code produced by the Producing Party. 8 (7) All persons who will review a Producing Party’s Source Code on 9 behalf of a Receiving Party, including a Receiving Party’s 10 counsel, shall be identified in writing to the Producing Party at 1] least five (5) days in advance of the first time that such person 12 reviews such Source Code. Such identification shall be in 13 addition to any other disclosure required under this Protective 14 Order. All persons viewing the Source Code shall sign on each 15 day they view Source Code a log that will include the names of 16 persons who enter the locked room to view the Source Code and 17 when they enter and depart. The Producing Party shall be entitled 18 to a copy of the log upon one (1) business day’s advance notice 19 to the Receiving Party. 20 (8) Unless otherwise agreed in advance by the Parties in writing, 21 following each day on which inspection is done under this 22 Protective Order, the Receiving Party’s counsel and/or experts 23 shall remove all notes, documents, and all other materials from 24 the Source Code Review Room. The Producing Party shall not be 25 responsible for any items left in the room following each 26 inspection session, and the Receiving Party shall have no 27 expectation of confidentiality for any items left in the room 28 following each inspection session without a prior agreement to

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] that effect. Proper identification of all authorized persons shall be 2 provided prior to any access to the Source Code Review Room or 3 the Source Code Computer. Proper identification requires 4 showing, at a minimum, a photo identification card sanctioned by 5 the government of any State of the United States, by the 6 government of the United States, or by the nation state of the 7 authorized person’s current citizenship. Access to the secure 8 room or the Source Code Computer may be denied, at the 9 discretion of the supplier, to any individual who fails to provide 10 proper identification. 1] (9) Other than as provided above, the Receiving Party will not copy, 12 remove, or otherwise transfer any Source Code from the Source 13 Code Computer including, without limitation, copying, 14 removing, or transferring the Source Code onto any recordable 15 media or recordable device. The Receiving Party will not transmit 16 any Source Code in any way from the Producing Party’s facilities 17 hosting the Source Code Computer. 18 (10) The Receiving Party’s counsel may not make paper copies of any 19 portions of the Source Code received from a Producing Party, 20 except for copies attached to court filings, expert reports, or used 21 at depositions, and shall maintain a log of all paper copies of the 22 Source Code. The log shall include the names of the reviewers 23 and/or recipients of paper copies and locations where the paper 24 copies are stored. Upon one (1) business day’s advance notice to 25 the Receiving Party by the Producing Party, the Receiving Party 26 shall provide a copy of this log to the Producing Party. 27 (11) The Receiving Party’s counsel and any person receiving a copy 28 of any Source Code shall maintain and store any paper copies of

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] the Source Code or any notes, analyses, or descriptions of Source 2 Code at their offices in a manner that prevents duplication of or 3 unauthorized access to the Source Code, including, without 4 limitation, storing the Source Code or any notes, analyses, or 5 descriptions of Source Code in a locked room or cabinet at all 6 times when it is not in use. No more than a total of ten (10) 7 individuals identified by the Receiving Party shall have access to 8 the printed portions of the Producing Party’s Source Code (except 9 insofar as such code appears in any court filing or expert report). 10 (12) For depositions, the Receiving Party may bring printed copies of 1] specific portions of the Source Code it wishes to use at the 12 deposition for the witness and counsel for the Parties. Copies of 13 Source Code that are marked as deposition exhibits shall not be 14 provided to the court reporter or attached to deposition 15 transcripts; rather, the deposition record will identify the exhibit 16 by its production numbers. All paper copies of Source Code 17 brought to the deposition shall remain with the Producing Party’s 18 counsel following the deposition for secure destruction in a timely 19 manner. 20 (13) Except as provided in this sub-paragraph, absent express written 21 permission from the Producing Party, the Receiving Party may 22 not create electronic images, or any other images, or make 23 electronic copies, of the Source Code from any paper copy of 24 Source Code for use in any manner (including by way of example 25 only, the Receiving Party may not scan the Source Code to a PDF, 26 photograph the Source Code, or scan the Source Code using 27 optical character recognition (“OCR”)). Subject to the foregoing 28 exceptions, images or copies of Source Code shall not be included

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] in correspondence between the Parties (references to production 2 numbers shall be used instead) and shall be omitted from 3 pleadings and other papers whenever possible. If a Party 4 reasonably believes that it needs to submit a portion of Source 5 Code as part of a filing with the Court, then the Parties shall meet 6 and confer as to how to make such a filing while protecting the 7 confidentiality of the Source Code and such Source Code will not 8 be filed absent agreement from the Producing Party that the 9 confidentiality protections will be adequate. If a Producing Party 10 agrees to produce an electronic copy of all or any portion of its 1] Source Code or to provide written permission to the Receiving 12 Party that an electronic or any other copy needs to be made for a 13 Court filing, access to the Receiving Party’s submission, 14 communication, and/or disclosure of electronic files or other 15 materials containing any portion of Source Code (paper or 16 electronic) shall at all times be limited solely to individuals who 17 are expressly authorized to view Source Code under the 18 provisions of this Protective Order. Where the Producing Party 19 has provided the express written permission required under this 20 provision for a Receiving Party to create electronic copies of 21 Source Code, the Receiving Party shall maintain a log of all such 22 electronic copies of any portion of Source Code in its possession 23 or in the possession of its retained consultants, including the 24 names of the reviewers and/or recipients of any such electronic 25 copies, and the locations and manner in which the electronic 26 copies are stored. Additionally, any such electronic copies must 27 be labeled “OUTSIDE COUNSEL AND COURT APPROVED 28

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1 IN-HOUSE COUNSEL ONLY” as provided for in this Protective 2 Order. 3 10. Information designated “ATTORNEYS’ EYES ONLY” may only be 4 || viewed by counsel of the Receiving Party, as defined in Paragraph 3(a)-(c), witnesses 5 || (pursuant to the terms of Paragraph 8(a)-(b)); independent experts (pursuant to the 6 || terms of Paragraph 8(c)); employees of a party’s insurer (pursuant to the terms of 7 || Paragraph 8(d)); and Court personnel and individuals covered by and pursuant to 8 || Paragraphs 8(e)-(i), on the same terms and conditions as set forth in Paragraph 8 9 || hereof. 10 11. Information designated “CONFIDENTIAL” may only be viewed by 11 | counsel of the Receiving Party, as defined in Paragraph 3(a)-(c), on the same terms 12 | and conditions as set forth in Paragraph 8 hereof; any witness while testifying under 13 | oath in this matter provided the witness is governed by the provisions of Paragraph 14 | 8(b)(1)-(4) hereof; independent experts (pursuant to the terms of Paragraph 8(c)); 15 || employees of a party’s insurer (pursuant to the terms of Paragraph 8(d)); Court 16 || personnel and individuals covered by and pursuant to Paragraphs 8(e)-(i); and by the 17 || additional individuals listed below, provided each such individual has read this Order 18 || in advance of disclosure and has signed Exhibit A: 19 (a) Executives who are required to participate in policy decisions with 20 reference to this action; 21 (b) Technical personnel of the Parties with whom Counsel for the Parties 22 find it necessary to consult, in the discretion of such counsel, in 23 preparation for trial of this action; 24 (c) Persons engaged by a Party’s counsel to furnish litigation support 25 services, such as, but not limited to, E-discovery vendors, technological 26 support staff, graphic consultants, jury consultants, jury research 27 participants, and office support staff, in this action, but not including the 28

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1 Party receiving the information, or any director, officer, agent or 2 employee of the Party; and 3 (d) Stenographic and clerical employees associated with the individuals 4 identified above. 5 12. Material designated “CONFIDENTIAL” or “ATTORNEYS’ EYES 6 || ONLY” or “OUTSIDE COUNSEL AND COURT APPROVED IN-HOUSE 7 | COUNSEL ONLY” may be shown to any person indicated on the face of the 8 || document to be its originator, author or a recipient of a copy of the document, or a 9 || custodian or other person who otherwise possessed or knew the information. Nothing 10 | herein is intended to limit or govern the manner in which the Producing Party handles 11 | its own documents produced that are given a confidential designation hereunder, 12 | including without limitation to whom the documents may be shown. 13 13. All information which has been designated as “CONFIDENTIAL” or 14 || ‘ATTORNEYS’ EYES ONLY” by a Producing Party, and any and all reproductions 15 || of that information, must be retained in the custody of the counsel for the Receiving 16 || Party identified in Paragraph 3. All information which has been designated as 17 | “OUTSIDE COUNSEL AND COURT APPROVED IN-HOUSE COUNSEL 18 || ONLY” by a Producing Party, and any and all reproductions of that information, 19 || must be retained in the custody of the counsel for the Receiving Party identified in 20 || Paragraph 3(a). However, independent experts authorized to view information 21 | designated as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” or “OUTSIDE 22 || COUNSEL AND COURT APPROVED IN-HOUSE COUNSEL ONLY” under the 23 || terms of this Order may retain custody of copies such as are necessary for their 24 || participation in this litigation. Any transcripts containing confidential information 25 || kept in a document management system must be password protected. To the extent 26 || possible, the Parties will request the court reporter provide a version of the transcript 27 || with all confidential information redacted to be approved by counsel making the 28 || designations. AD Ao NT 10 ne AIOLE □□□ □□□□□□

] 14. Any handwritten or typed notes made by counsel about the confidential 2 || information shall be treated as confidential information. 3 15. At all times, the confidential information disclosed shall remain in 4 || possession of counsel permitted access to it in a secured environment within that 5 || counsel’s office or home. No copy may be sent or taken off-site without the prior 6 || written consent of the designating counsel, except for use in preparing for or during 7 || depositions, cross-examinations, hearings, or on affidavits (or any other examination) 8 || or at Court or at a mediation in relation to this litigation. 9 16. Before any materials produced in discovery, answers to interrogatories, 10 | responses to requests for admissions, deposition transcripts, or other documents 11 | which are designated as confidential information are filed with the Court for any 12 || purpose, the party seeking to file such material must seek permission of the Court to 13 | file the material under seal. If a Party wishes to file or lodge documents designated 14 |} as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” or “OUTSIDE 15 | COUNSEL AND COURT APPROVED IN-HOUSE COUNSEL ONLY” under seal, 16 || the other Parties shall not unreasonably withhold agreement to such procedure. If an 17 || agreement is reached, the Parties shall submit to the Court a Joint Motion and 18 || Proposed Order for such filing or lodging under seal. If no such agreement is reached, 19 || then the proponent of lodging or filing under seal shall seek a sealing order from the 20 || Court consistent with the Local Rules of the United States District Court for the 21 || Southern District of California and the assigned judge’s chambers rules. No party 22 || may file any document under seal, except pursuant to a court order that authorizes 23 || the filing of the document, or portion of the document, under seal. A sealing order 24 || will issue only upon a showing that the information is privileged or protectable under 25 || the law. The party seeking to file under seal must limit its sealing request to the 26 || specific portion of the document that contains the confidential or privileged material. 27 17. Atany stage of these proceedings, any Party may object to a designation 28 || of materials that have been designated as confidential information. The Party AQ Ao NT 10 ne AIOLE □□□ □□□□□□

1 || objecting to confidentiality must notify, in writing, counsel for the Producing Party 2 || of the objected-to materials and the ground(s) for the objection. Thereafter, lead 3 || counsel (or attorneys with full authority to make decisions and bind the client without 4 | later seeking approval from a supervising attorney) must promptly meet and confer, 5 || pursuant to Local Rule 26.1.a. If the dispute is not resolved within seven (7) days of 6 || receipt of the objections, and after counsel have thoroughly and completely met and 7 || conferred, the Parties must place a joint call to the assigned magistrate judge’s 8 || chambers to explain the dispute and the Parties’ respective positions. The materials 9 || at issue must be treated as confidential, as designated by the designating party, until 10 | the Court has ruled on the objection or the matter has been otherwise resolved. 1] 18. All confidential information must be held in confidence by those 12 || inspecting or receiving it, and must be used only for purposes of this action. Counsel 13 | for each Party, and each person receiving confidential information must take 14 | reasonable precautions to prevent the unauthorized or inadvertent disclosure of such 15 || information. If confidential information is disclosed to any person other than a person 16 || authorized by this Order, the Party responsible for the unauthorized disclosure must 17 || immediately bring all pertinent facts relating to the unauthorized disclosure to the 18 || attention of the other Parties and, without prejudice to any rights and remedies of the 19 || other Parties, make every effort to prevent further disclosure by the Party and by the 20 || person(s) receiving the unauthorized disclosure. 21 19. No Party will be responsible to another Party or subpoenaed non-party 22 || for disclosure of confidential information under this Order if the information in 23 || question is not labeled or otherwise identified as such in accordance with this Order. 24 20. Ifa Party or subpoenaed non-party, through inadvertence, produces any 25 || confidential information without labeling or marking or otherwise designating it as 26 || such in accordance with this Order, the designating party or subpoenaed non-party 27 || may give written notice to the Receiving Party that the document or thing produced 28 || is deemed confidential information, and that the document or thing produced should

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1 || be treated as such in accordance with that designation under this Order. The 2 || Receiving Party must treat the materials as confidential, once the designating party 3 || so notifies the Receiving Party. If the Receiving Party has disclosed the materials 4 || before receiving the designation, the Receiving Party must notify the designating 5 || party in writing of each such disclosure. Counsel for the Parties or subpoenaed non- 6 || parties will agree on a mutually acceptable manner of labeling or marking the 7 || inadvertently produced materials as “CONFIDENTIAL” or “ATTORNEYS’ EYES 8 || ONLY” or “OUTSIDE COUNSEL AND COURT APPROVED IN-HOUSE 9 || COUNSEL ONLY” subject to the protective order. 10 21. Nothing within this Order will prejudice the right of any Party or 11 | subpoenaed non-party to object to the production of any discovery material on the 12 || grounds that the material is protected as privileged or as attorney work product. 13 22. Nothing in this Order will bar counsel from rendering advice to their 14 | clients with respect to this litigation and, in the course thereof, relying upon any 15 || information designated as confidential information, provided that the contents of the 16 || information must not be disclosed. 17 23. This Order will be without prejudice to the right of any Party or 18 || subpoenaed non-party to oppose production of any information for lack of relevance 19 || or any other ground other than the mere presence of confidential information. The 20 || existence of this Order must not be used by either party as a basis for discovery that 21 || is otherwise improper under the Federal Rules of Civil Procedure. 22 24. Nothing within this order will be construed to prevent disclosure of 23 || confidential information if such disclosure is required by law or by order of the Court. 24 25. Within ninety (90) days following the final termination of this action, 25 || including any and all appeals, counsel for each party must return all confidential 26 || information to the Party or subpoenaed non-party that produced the information, 27 || including any copies, excerpts, and summaries of that information, or must destroy 28 || same at the option of the Receiving Party, and must purge all such information from

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] || all machine-readable media on which it resides. Should counsel decide to 2 || destroy/delete rather than return any of the applicable confidential information, 3 |} counsel shall provide the party that produced such information with written 4 | certification that the destruction/deletion of all confidential information has been 5 || completed. Notwithstanding the foregoing, counsel for each Party may retain all 6 || pleadings, briefs, memoranda, motions, and other documents filed with the Court that 7 || refer to or incorporate confidential information and will continue to be bound by this 8 |} Order with respect to all such retained information. Further, attorney work product 9 || materials that contain confidential information need not be destroyed, but, if they are 10 | not destroyed, the person in possession of the attorney work product will continue to 11 | be bound by this Order with respect to all such retained information. 12 26. restrictions and obligations set forth within this Order will not apply 13 | to any information that: (a) the Parties agree should not be designated confidential 14 | information; (b) the Parties agree, or the Court rules, is already public knowledge; 15 || (c) the Parties agree, or the Court rules, has become public knowledge other than as 16 || aresult of disclosure by the Receiving Party, its employees, or its agents in violation 17 || of this Order; or (d) has come or will come into the Receiving Party’s legitimate 18 || knowledge independently of the production by the designating party. Prior 19 || knowledge must be established by pre-production documentation. 20 27. The restrictions and obligations within this Order will not be deemed to 21 || prohibit discussions of any confidential information with anyone if that person 22 || already has or obtains legitimate possession of that information. 23 28. Transmission by email or some other currently utilized method of 24 || transmission is acceptable for all notification purposes within this Order. 25 29. This Order may be modified by agreement of the Parties, subject to 26 || approval by the Court. 27 30. The Court may modify the protective order in the interest of justice or 28 || for public policy reasons. The Parties prefer that the Court provide them with notice

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1 || of the Court’s intent to modify the Order and the content of those modifications, prior 2 || to entry of such an order. 3 31. If another court or government agency subpoenas or orders production 4 | of material designated “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” or 5 || “OUTSIDE COUNSEL AND COURT APPROVED IN-HOUSE COUNSEL 6 || ONLY,” that a Party has obtained under the terms of this Order, such Party shall, 7 || immediately or as soon as practicable, but in any event at least seven (7) days before 8 || such designated materials are required to be produced, notify the designating party 9 || of the pendency of the subpoena, public records request, or order, in writing, and 10 | unless compelled to do so by court order shall not produce the designated information 11 | until the designating party has either taken appropriate steps to protect the material, 12 | or notified the Party that no such steps will be taken. It shall be the responsibility of 13 | the designating party to obtain relief from the subpoena, public records request, or 14 | order prior to the date of compliance, and, to give the designating party an 15 || opportunity to obtain such relief, the Party from whom the information is sought shall 16 || not make the disclosure before the actual due date of compliance set forth in the 17 || subpoena, public records request, or other order. 18 32. Inadvertent Production of Privileged or Otherwise Protected 19 || Material: When a Producing Party gives notice to Receiving Parties that certain 20 || inadvertently or mistakenly produced information, document, or thing is subject to a 21 || claim of privilege or other protection, the obligations of the Receiving Parties are 22 || those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). Such inadvertent or 23 || mistaken disclosure of such information, document, or thing shall not by itself 24 || constitute a waiver by the Producing Party of any claims of privilege or work-product 25 || immunity or other applicable protections. However, nothing herein restricts the right 26 || of the Receiving Party to challenge the Producing Party’s claim of privilege if 27 || appropriate within a reasonable time after receiving notice of the inadvertent or 28 || mistaken disclosure. This provision is not intended to modify whatever procedure AF Ao NT 10 ne AIOLE □□□ □□□□□□

1 || may be established in an e-discovery order that provides for production without prior 2 || privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 3 || Parties reach an agreement on the effect of disclosure of a communication or 4 | information covered by the attorney-client privilege or work product protection, the 5 || Parties may incorporate their agreement in the stipulated protective order submitted 6 || to the Court. g Dated: February 16, 2021 —~ . 9 Dold Honorable Daniel E. Butcher 10 United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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3 I, , being duly sworn, state that: 4 1. My address is . 5 2. My present employer is and the 6 || address of my present employment is . 7 3. My present occupation or job description is 8 4. Ihave carefully read and understood the provisions of the STIPULATED 9 | PROTECTIVE ORDER in this case signed by the Court, and I will comply with all 10 | provisions of the Protective Order. 1] 5. I will hold in confidence and not disclose to anyone not qualified under 12 || the Protective Order any Confidential Material (defined as material designated as 13 || “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” or “OUTSIDE COUNSEL 14 | AND COURT APPROVED IN-HOUSE COUNSEL ONLY” or information 15 | derived from such materials) or any words, summaries, abstracts, or indices of 16 || Confidential Information disclosed to me. 17 6. I will limit use of Confidential Material disclosed to me solely for purpose 18 || of this action. 19 7. No later than the final conclusion of the case, I will return all Confidential 20 || Material and summaries, abstracts, and indices thereof which come into my 21 || possession, and documents or things which I have prepared relating thereto, to 22 || counsel for the party for whom I was employed or retained. 23 I declare under penalty of perjury that the foregoing is true and correct. 24 25 || Dated: 26 27 28

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