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In re Ex parte Application of Broadcom Corp.

United States District Court, W.D. Washington, Seattle

November 15, 2019

In re Ex Parte Application of BROADCOM CORPORATION, a Delaware corporation, and AVAGO TECHNOLOGIES INTERNATIONAL SALES PTE. LIMITED, a business entity formed under the laws of Singapore, Applicants, for an Pursuant to 28 U.S.C. § 1782 Granting Leave to Obtain Discovery for Use in Foreign Proceedings.

          CALFO EAKES & OSTROVSKY PLLC Damon Clay Elder HOPKINS & CARLEY A Law Corporation Jason S. Angell Attorneys for BROADCOM CORP. and AVAGO TECHS. INT'L SALES PTE. LTD.

          COOLEY, LLP Matt Brigham Christopher B. Durbin, Attorneys for NINTENDO OF AMERICA, INC., NINTENDO TECHNOLOGY DEVELOPMENT, INC., and NINTENDO SOFTWARE TECHNOLOGY CORPORATION

          SUPPLEMENTAL STIPULATION AND PROTECTIVE ORDER REGARDING SOURCE CODE

          The Honorable Richard A. Jones United States District Judge

         The purpose of this order (“Supplemental Order Re Source Code”) is to supplement the Stipulated Protective Order entered in the above-captioned matter (Dkt. 28) (“Original Protective Order”), by establishing additional protections and procedures regarding the discovery and disclosure of source code. The goal of this Supplemental Order Re Source Code, like the Original Protective Order, is to expedite the flow of discovery materials, facilitate the prompt resolution of disputes over confidentiality, adequately protect confidential materials, and ensure that protection is afforded only to material so entitled, and for good cause shown, pursuant to Fed.R.Civ.P. 26(c). For the avoidance of doubt, unless expressly modified herein, all provisions of the Original Protective Order remain in effect, and the rights and obligations thereunder remain available to and binding on the Parties.

         1.DEFINITIONS

         1.1 Definitions from Original Protective Order: In addition to new terms defined herein, this Supplemental Order Re Source Code uses the defined terms contained in the Original Protective Order, which shall have the same meaning as defined in the Original Protective Order.

         1.2 “HIGHLY CONFIDENTIAL - SOURCE CODE” Information or Items: Extremely sensitive Discovery Material representing computer code and associated comments and revision histories, formulas, engineering specifications, or schematics that define or otherwise describe in detail the algorithms or structure of software or hardware designs, disclosure of which to another Party or Non-Party would create a substantial risk of serious harm that could not be avoided by less restrictive means. “HIGHLY CONFIDENTIAL - SOURCE CODE” information shall be considered Protected Material as that term is used in the Original Protective Order.

         2. SOURCE CODE

         2.1 A Producing Party may designate source code as “HIGHLY CONFIDENTIAL -SOURCE CODE” if it comprises or includes confidential, proprietary, or trade secret source code that meets the definition in Section 1.2.

         2.2 Except as otherwise described herein, material designated as “HIGHLY CONFIDENTIAL - SOURCE CODE” shall be subject to all of the protections, procedures, and requirements in the Original Protective Order governing “HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY” items and information, and shall be treated, handled, and used in the same manner.

         2.3 Information or items designated as “HIGHLY CONFIDENTIAL - SOURCE CODE” may be disclosed only to the individuals to whom “HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY” information may be disclosed, as set forth in Section 6.5 of the Original Protective Order, with the exception that printouts of such material used as exhibits in a deposition shall not be provided to the court reporter or their staff.

         2.4 The Patent Prosecution Bar and Development Bar as set forth in Sections 6.8 and 6.9 of the Original Protective Order apply to any person who reviews “HIGHLY CONFIDENTIAL - SOURCE CODE” information. For the avoidance of doubt, the Patent Prosecution Bar and Development Bar apply to any “HIGHLY CONFIDENTIAL - SOURCE CODE” Information, regardless of the age of such information.

         2.5 All persons who will review a Producing Party's “HIGHLY CONFIDENTIAL - SOURCE CODE” information on behalf of a Receiving Party, including a Receiving Party's outside Counsel, shall be identified in writing to the Producing Party at least two (2) days in advance of the first time that such person reviews such information. Such identification shall be in addition to any other disclosure required under this Protective Order. All persons viewing such information shall sign on each day they view such information a log that will include the names of persons who enter the locked room to view the information and when they enter and depart. The Producing Party shall be entitled to a copy of the log upon three (3) days' advance notice to the Receiving Party.

         2.6 Any source code produced in discovery shall be made available for inspection, in its native format and in its buildable and runtime debuggable form, during normal business hours or at other mutually agreeable times, at the offices of Producing Party's Outside Counsel of record in the above captioned case in Palo Alto, California, or another mutually agreed upon location. The source code shall be made available for inspection on one secured computer (the “Source Code Computer”) in a secured room (the “Source Code Review Room”) in a configuration deemed secure by the Producing Party, 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 ...


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