1

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

ONSTREAM MEDIA CORPORATION, §

§

Plaintiff, §

§

v. §

§

FACEBOOK, INC., §

§

Defendant. §

CIVIL ACTION No. 1:20-cv-00214-ADA

JURY TRIAL DEMANDED

STIPULATED PROTECTIVE ORDER

WHEREAS, it may be necessary or desirable to take discovery of information which is 

believed to be confidential and proprietary by the holder thereof; and

WHEREAS, the parties hereto desire to obtain a protective order to prevent dissemination 

and unnecessary disclosure of such information on the public record;

WHEREAS, such information likely will include, among other things, information about 

sensitive products and/or services, proprietary design and development materials of products 

and/or services, source code, strategic decision-making information, and marketing and sales 

information (“Protected Material”);

IT IS HEREBY STIPULATED, and subject to the Court’s approval, pursuant to Federal 

Rules of Civil Procedure, Rule 26(c), that the following provisions shall govern the handling of 

such confidential information and documents in these proceedings.

1. PURPOSES AND LIMITATIONS

Disclosure and discovery activity in this action are likely to involve production of 

confidential, proprietary, or private information for which special protection from public 

disclosure and from use for any purpose other than prosecuting this litigation may be warranted. 

Accordingly, the parties hereby stipulate to the following Stipulated Protective Order. The parties 

acknowledge that this Order does not confer blanket protections on all disclosures or responses to 

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discovery and that the protection it affords from public disclosure and use extends only to the 

limited information or items that are entitled to confidential treatment under the applicable legal 

principles. 

2. DEFINITIONS

2.1 Challenging Party: a Party or Non-Party that challenges the designation of 

information or items under this Order.

2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is 

generated, stored or maintained) or tangible things that qualify for protection under Federal Rule 

of Civil Procedure 26(c).

2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as 

well as their support staff).

2.4 Designating Party: a Party or Non-Party that designates information or items that it 

produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “HIGHLY 

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE 

CODE.”

2.5 Disclosure or Discovery Material: all items or information, regardless of the 

medium or manner in which it is generated, stored, or maintained (including, among other things, 

testimony, transcripts, and tangible things), that are produced or generated in disclosures or 

responses to discovery in this matter.

2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to 

the litigation who (1) has been retained by a Party or its Counsel to serve as an expert witness or 

as a consultant in this action, (2) is not a past or current employee of a Party and whose 

responsibilities involved the accused products or the patented technology, (3) at the time of 

retention, is not anticipated to become an employee of a Party and whose responsibilities will 

involve the accused products or the patented technology, and (4) in the case of anyone to whom 

HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY or HIGHLY CONFIDENTIAL –

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SOURCE CODE may be shown, has been cleared through the disclosure/objection process set 

forth in section 7.5. 

2.7 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or 

Items: extremely sensitive “Confidential Information or Items,” 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.

2.8 “HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items: 

extremely sensitive “Confidential Information or Items” 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.

2.9 House Counsel: attorneys who are employees of a party to this action. House 

Counsel does not include Outside Counsel of Record or any other outside counsel.

2.10 Non-Party: any natural person, partnership, corporation, association, or other legal 

entity not named as a Party to this action.

2.11 Outside Counsel of Record: attorneys who are not employees of a party to this 

action but are retained to represent or advise a party to this action and have appeared in this action 

on behalf of that party or are employed by a law firm which has appeared on behalf of that party. 

2.12 Party: any party to this action, including all of its officers, directors, employees, 

consultants, retained experts, and Outside Counsel of Record (and their support staffs).

2.13 Producing Party: a Party or Non-Party that produces Disclosure or Discovery 

Material in this action.

2.14 Professional Vendors: persons or entities that provide litigation support services 

(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and 

organizing, storing, or retrieving data in any form or medium) and their employees and 

subcontractors.

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2.15 Protected Material: any Disclosure or Discovery Material that is designated as 

“CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or as 

“HIGHLY CONFIDENTIAL – SOURCE CODE.”

2.16 Receiving Party: a Party that receives Disclosure or Discovery Material from a 

Producing Party.

3. SCOPE

The protections conferred by this Stipulation and Order cover not only Protected Material 

(as defined above), but also (1) any information copied or extracted from Protected Material; (2) 

all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 

conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 

However, the protections conferred by this Stipulation and Order do not cover the following 

information: (a) any information that is in the public domain at the time of disclosure to a 

Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as 

a result of publication not involving a violation of this Order, including becoming part of the public 

record through trial or otherwise; and (b) any information known to the Receiving Party prior to 

the disclosure or obtained by the Receiving Party after the disclosure from a source who obtained 

the information lawfully and under no obligation of confidentiality to the Designating Party. 

However, if the accuracy of information is confirmed only through the review of Protected 

Material, then the information shall not be considered to be in the public domain. For example, 

unsubstantiated media speculations or rumors that are later confirmed to be accurate through 

access to Protected Material are not “public domain” information. Such information is explicitly 

included in the definition of “Protected Material” set forth in Paragraph 2.15 above. Any use of 

Protected Material at trial shall be governed by a separate agreement or order.

4. DURATION

Even after final disposition of this litigation, the confidentiality obligations imposed by this 

Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order 

otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims 

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and defenses in this action, with or without prejudice; and (2) final judgment herein after the 

completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, 

including the time limits for filing any motions or applications for extension of time pursuant to 

applicable law and the time limits for filing a petition for writ of certiorari to the Supreme Court 

of the United States if applicable.

5. DESIGNATING PROTECTED MATERIAL

5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party 

or Non-Party that designates information or items for protection under this Order must take care 

to limit any such designation to specific material that qualifies under the appropriate standards. 

To the extent it is practical to do so, the Designating Party must designate for protection only those 

parts of material, documents, items, or oral or written communications that qualify – so that other 

portions of the material, documents, items, or communications for which protection is not 

warranted are not swept unjustifiably within the ambit of this Order.

If it comes to a Designating Party’s attention that information or items that it designated 

for protection do not qualify for protection at all or do not qualify for the level of protection initially 

asserted, that Designating Party must promptly notify all other parties that it is withdrawing the 

mistaken designation.

5.2 Manner and Timing of Designations. Except as otherwise provided in this Order 

(see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, 

Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 

designated before the material is disclosed or produced. 

Designation in conformity with this Order requires:

(a) for information in documentary form (e.g., paper or electronic documents, but 

excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party 

affix the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 

ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” to each page that contains Protected 

Material. 

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(b) for testimony given in deposition or other pretrial or trial proceedings that the 

Designating Party either (1) identify on the record or (2) identify, in writing, within 21 days of 

receipt of the final transcript, that the transcript shall be treated as “CONFIDENTIAL,” “HIGHLY 

CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE 

CODE.”

Parties shall give the other parties notice if they reasonably expect a deposition or other 

pretrial or trial proceeding to include Protected Material so that the other parties can ensure that 

only authorized individuals who have signed the “Acknowledgment and Agreement to Be Bound” 

(Exhibit A) are present at those proceedings. The use of a document as an exhibit at a deposition 

or other pretrial or trial proceedings shall not in any way affect its designation as 

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or 

“HIGHLY CONFIDENTIAL – SOURCE CODE.” 

Transcripts containing Protected Material shall have an obvious legend on the title page 

that the transcript contains Protected Material, and the title page shall be followed by a list of all 

pages that have been designated as Protected Material and the level of protection being asserted 

by the Designating Party. The Designating Party shall inform the court reporter of these 

requirements. Any transcript that was not designated on the record pursuant to the first paragraph 

of section 5.2(a) above shall be treated during the 21-day period for designation as if it had been 

designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety. After 

the expiration of that period or as of such earlier time that such transcript is designated, the 

transcript shall be treated only as actually designated. 

(c) for information produced in some form other than documentary and for any 

other tangible items, that the Producing Party affix in a prominent place on the exterior of the 

container or containers in which the information or item is stored the legend “CONFIDENTIAL” 

or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY 

CONFIDENTIAL – SOURCE CODE.” If only a portion or portions of the information or item 

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warrant protection, the Producing Party, to the extent practicable, shall identify the protected 

portion(s) and specify the level of protection being asserted.

5.3 Inadvertent Failures to Designate. An inadvertent failure to designate qualified 

information or items does not waive the Designating Party’s right to secure protection under this 

Order for such material. Upon correction of a designation, the Receiving Party must make all 

reasonable efforts to assure that the material is treated in accordance with the provisions of this 

Order.

6. CHALLENGING CONFIDENTIALITY DESIGNATIONS

6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 

confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality 

designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 

burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to 

challenge a confidentiality designation by electing not to mount a challenge promptly after the 

original designation is disclosed.

6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution 

process by providing written notice of each designation it is challenging and describing the basis 

for each challenge. To avoid ambiguity as to whether a challenge has been made, the written 

notice must recite that the challenge to confidentiality is being made in accordance with this 

specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in 

good faith and must begin the process by conferring directly (in voice to voice dialogue; other 

forms of communication are not sufficient) within 14 days of the date of service of notice. In 

conferring, the Challenging Party must explain the basis for its belief that the confidentiality 

designation was not proper and must give the Designating Party an opportunity to review the 

designated material, to reconsider the circumstances, and, if no change in designation is offered, 

to explain the basis for the chosen designation. A Challenging Party may proceed to the next stage 

of the challenge process only if it has engaged in this meet and confer process first or establishes 

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that the Designating Party is unwilling to participate in the meet and confer process in a timely 

manner.

6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court 

intervention, the Designating Party shall have 14 days to submit the issue to the Court for a 

determination in accordance with the Court’s discovery dispute procedures. The disputed 

information shall remain Protected Material unless and until the Court orders otherwise. Failure 

to submit the issue to the Court within 14 days shall constitute a termination of the status of such 

item as Protected Material.

The burden of persuasion in any such challenge proceeding shall be on the Designating 

Party. Frivolous challenges and those made for an improper purpose (e.g., to harass or impose 

unnecessary expenses and burdens on other parties) may expose the Challenging Party to 

sanctions. Unless the Designating Party has waived the confidentiality designation by failing to 

submit the issue to the Court for a determination to retain confidentiality as described above, all 

parties shall continue to afford the material in question the level of protection to which it is entitled 

under the Producing Party’s designation until the Court rules on the challenge.

7. ACCESS TO AND USE OF PROTECTED MATERIAL

7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed 

or produced by another Party or by a Non-Party in connection with this case only for prosecuting, 

defending, or attempting to settle this litigation. Such Protected Material may be disclosed only 

to the categories of persons and under the conditions described in this Order. When the litigation 

has been terminated, a Receiving Party must comply with the provisions of section 15 below 

(FINAL DISPOSITION).

Protected Material must be stored and maintained by a Receiving Party at a location and in 

a secure manner that ensures that access is limited to the persons authorized under this Order.

7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered 

by the Court or permitted in writing by the Designating Party, a Receiving Party may disclose any 

information or item designated “CONFIDENTIAL” only to:

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(a) the Receiving Party’s Outside Counsel of Record in this action, as well as 

employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the 

information for this litigation;

(b) the officers, directors, and employees (including House Counsel) of the 

Receiving Party to whom disclosure is reasonably necessary for this litigation and who have signed 

the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 

reasonably necessary for this litigation and who have signed the “Acknowledgment and 

Agreement to Be Bound” (Exhibit A);

(d) the Court and its personnel;

(e) court reporters and their staff, professional jury or trial consultants including 

mock jurors who have signed a confidentiality agreement, and Professional Vendors to whom 

disclosure is reasonably necessary for this litigation and who have signed the “Acknowledgment 

and Agreement to Be Bound” (Exhibit A);

(f) during their depositions, (1) witnesses of the Designating Party who have been 

designated by the Designating Party to testify pursuant to Rule 30(b)(6), or (2) the Designating 

Party consents to the disclosure. Pages of transcribed deposition testimony or exhibits to 

depositions that reveal Protected Material must be separately bound by the court reporter and may 

not be disclosed to anyone except as permitted under this Stipulated Protective Order;

(g) the author or recipient of a document containing the information or a custodian 

or other person who otherwise possessed or knew the information.

7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 

Information or Items. Unless otherwise ordered by the Court or permitted in writing by the 

Designating Party, a Receiving Party may disclose any information or item designated “HIGHLY 

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to:

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(a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees 

of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information 

for this litigation;

(b) Experts of the Receiving Party (1) to whom disclosure is reasonably necessary for this 

litigation, (2) who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), 

and (3) as to whom the procedures set forth in paragraph 7.4(a), below, have been followed;

(c) the Court and its personnel;

(d) court reporters and their staff, 

(e) professional jury or trial consultants including mock jurors who have signed a 

confidentiality agreement, and Professional Vendors to whom disclosure is reasonably necessary 

for this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” 

(Exhibit A); 

(f) the author or recipient of a document containing the information or a custodian or other 

person who otherwise possessed or knew the information; and

(g) during their depositions, (1) witnesses of the Designating Party who have been 

designated by the Designating Party to testify pursuant to Rule 30(b)(6) or (2) the Designating 

Party consents to the disclosure. Pages of transcribed deposition testimony or exhibits to 

depositions that reveal Protected Material must be separately bound by the court reporter and may 

not be disclosed to anyone except as permitted under this Stipulated Protective Order.

7.4 Disclosure of “HIGHLY CONFIDENTIAL – SOURCE CODE” Information or 

Items. Unless otherwise ordered by the Court or permitted in writing by the Designating Party, a 

Receiving Party may disclose any information or item designated “HIGHLY CONFIDENTIAL –

SOURCE CODE” only to:

(a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees 

of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information 

for this litigation;

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(b) up to three Experts of the Receiving Party (1) to whom disclosure is reasonably 

necessary for this litigation, (2) who have signed the “Acknowledgment and Agreement to Be 

Bound” (Exhibit A), and (3) as to whom the procedures set forth in paragraph 7.4(a), below, have 

been followed;

(c) the Court and its personnel;

(d) court reporters and their staff, 

(e) professional jury or trial consultants (but not mock jurors), and Professional Vendors 

to whom disclosure is reasonably necessary for this litigation and who have signed the 

“Acknowledgment and Agreement to Be Bound” (Exhibit A), 

(f) the author or recipient of a document containing the information or a custodian or other 

person who otherwise possessed or knew the information; and

(g) during their depositions, (1) witnesses of the Designating Party who have been 

designated by the Designating Party to testify pursuant to rule 30(b)(6), or (2) the Designating 

Party consents to the disclosure. Pages of transcribed deposition testimony or exhibits to 

depositions that reveal Protected Material must be separately bound by the court reporter and may 

not be disclosed to anyone except as permitted under this Stipulated Protective Order.

7.5 Procedures for Approving or Objecting to Disclosure of “HIGHLY 

CONFIDENTIAL - ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE 

CODE” Information or Items to Experts.

(a) Unless otherwise ordered by the Court or agreed to in writing by the Designating Party, 

a Party that seeks to disclose to an Expert (as defined in this Order) any information or item that 

has been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY 

CONFIDENTIAL – SOURCE CODE” pursuant to paragraphs 7.3 and 7.4 first must make a 

written request to the Designating Party that (1) identifies the general categories of “HIGHLY 

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE 

CODE” information that the Receiving Party seeks permission to disclose to the Expert, (2) sets 

forth the full name of the Expert and the city and state of his or her primary residence, (3) attaches 

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a copy of the Expert’s current resume, (4) identifies the Expert’s current employer(s) and any 

known future employer(s), (5) identifies each person or entity from whom the Expert has received 

compensation or funding for work in his or her areas of expertise or to whom the Expert has 

provided professional services, including in connection with a litigation, at any time during the 

preceding four years and the party to the litigation for whom such work was done, (6) identifies 

(by name and number of the case, filing date, and location of court) any litigation in connection 

with which the Expert has offered expert testimony, including through a declaration, report, or 

testimony at a deposition or trial, during the preceding four years, and (7) identifies any patents or 

patent applications in which the Expert is identified as an inventor or applicant, is involved in 

prosecuting or maintaining, or has any pecuniary interest. With regard to the information sought 

through part (5) of this disclosure, if the Expert believes any of this information is subject to a 

confidentiality obligation to a third party, then the Expert should provide whatever information the 

Expert believes can be disclosed without violating any confidentiality agreements, and the Party 

seeking to disclose to the Expert shall be available to meet and confer with the Designating Party 

regarding any such engagement. 

(b) A Party that makes a request and provides the information specified in the preceding 

respective paragraphs may disclose the subject Protected Material to the identified Expert unless, 

within 14 days of delivering the request, the Party receives a written objection from the 

Designating Party. Any such objection must set forth in detail the grounds on which it is based.

(c) A Party that receives a timely written objection must meet and confer with the 

Designating Party (through direct voice to voice dialogue) to try to resolve the matter by agreement 

within 10 days of the written objection. If no agreement is reached, the Party objecting to the 

disclosure to the Expert shall have 14 days to submit the issue to the Court for a determination in 

accordance with the Court’s discovery dispute procedures. The objecting party shall have the 

burden of demonstrating that disclosure to the disputed person would expose the objecting party 

to the risk of serious harm. Upon timely submission to the Court for determination, no disclosure 

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of Protected Material shall be made to the disputed Expert unless and until the Court enters an 

order allowing disclosure to the disputed Expert.

In any such proceeding, the Party opposing disclosure to the Expert shall bear the burden 

of proving that the risk of harm that the disclosure would entail (under the safeguards proposed) 

outweighs the Receiving Party’s need to disclose the Protected Material to its Expert.

8. PROSECUTION BAR

Absent written consent from the Producing Party, any individual bound by this agreement 

who receives access to “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or 

“HIGHLY CONFIDENTIAL – SOURCE CODE” information shall not be involved in the 

prosecution of patents or patent applications relating to the subject matter of the patents-in-suit

(i.e., recording streamed media on a server and sharing that recorded media from the server), as 

well as the subject matter of the “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 

or “HIGHLY CONFIDENTIAL – SOURCE CODE” information to which access is received, 

where the prosecution activity impacts the claim scope, including without limitation such activities 

relating to the patents asserted in this action and any patent or application claiming priority to or 

otherwise related to the patents asserted in this action, before any foreign or domestic agency, 

including the United States Patent and Trademark Office (“the Patent Office”). For purposes of 

this paragraph, “prosecution” includes directly or indirectly drafting, amending, advising, or 

otherwise affecting the scope or maintenance of patent claims. Prosecution includes, for example, 

original prosecution, reissue, and reexamination and other post-grant proceedings. To avoid any 

doubt, “prosecution” as used in this paragraph does not include participating or assisting in 

challenging or defending any patents pertaining to the field of the invention of the patents-in-suit 

before a domestic or foreign agency (including, but not limited to, a reissue protest, ex parte

reexamination, inter partes reexamination, post grant review, covered business method patent 

review, or inter partes review), provided that such participation or assistance shall not, directly or 

indirectly, include advising, consulting, suggesting, preparing, drafting, or amending patent claim 

language or specifications at issue. This Prosecution Bar shall begin when access to “HIGHLY 

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE 

CODE” information is first received by the affected individual and shall end one (1) year after 

final termination of this action.

9. SOURCE CODE

(a) To the extent production of source code becomes necessary in this case, a 

Producing Party may designate source code as “HIGHLY CONFIDENTIAL - SOURCE CODE” 

if it comprises or includes extremely sensitive “Confidential Information or Items” 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.

(b) Protected Material designated as “HIGHLY CONFIDENTIAL – SOURCE 

CODE” shall be subject to all of the protections afforded to “HIGHLY CONFIDENTIAL –

ATTORNEYS’ EYES ONLY” information including the Prosecution Bar set forth in Paragraph 

8, and may be disclosed only to the individuals to whom “HIGHLY CONFIDENTIAL –

ATTORNEYS’ EYES ONLY – SOURCE CODE” information may be disclosed, as set forth in 

Paragraphs 7.3 and 7.4.

(c) Any source code produced in discovery shall be made available for 

inspection, in a format allowing it to be reasonably reviewed and searched, during normal business 

hours (9:00 am to 6:00 pm local time) or at other mutually agreeable times, at an office of the 

Producing Party’s Counsel selected by the Producing Party or another mutually agreed upon 

location. The computer containing source code will be made available upon reasonable notice to 

the Producing Party, which shall not be less than five (5) business days in advance of the requested 

inspection. The source code shall be made available for inspection on a secured computer in a 

room without Internet access or network access to other computers, and the Receiving Party shall 

not copy, remove, or otherwise transfer any portion of the source code onto any recordable media 

or recordable device. The Producing Party may visually monitor the activities of the Receiving 

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Party’s representatives during any source code review, but only to ensure that there is no 

unauthorized recording, copying, or transmission of the source code. All persons viewing Source 

Code shall sign on each day they view Source Code a log that will include the names of persons 

who enter the room to view the Source Code and when they enter and depart. 

(d) The Receiving Party may request paper copies of limited portions of source 

code that are reasonably necessary to attach to filings, pleadings, expert reports, or other papers, 

or for use as an exhibit at deposition or trial, but shall not request paper copies for the purposes of 

reviewing the source code other than electronically as set forth in paragraph (c) in the first instance. 

Using the software available on the Source Code Computer, the Receiving Party shall create PDFs 

of the printed copies the Receiving Party is requesting and save them in a folder on the desktop 

named “Print Requests” with a subfolder identifying the date of the request. The PDF printouts 

must include identifying information including the full file path and file name, page number, line 

numbers, and date. The request for printed Source Code shall be served via an email request 

identifying the subfolders of the “Print Requests” folder that the Receiving Party is requesting. 

Within five (5) business days of such request, the Producing Party shall provide one copy of all 

such source code on non-copyable paper, including bates numbers and the label “HIGHLY 

CONFIDENTIAL - SOURCE CODE.” If the request is served after 5:00 pm Pacific Time, it shall 

be deemed served the following business day. The Producing Party may challenge the amount of 

source code requested in hard copy form pursuant to the dispute resolution procedure set forth in 

Paragraph 6 whereby the Producing Party is the “Challenging Party” and the Receiving Party is 

the “Designating Party” for purposes of dispute resolution. In no case may the Receiving Party 

request more than 25 consecutive pages, or an aggregate of more than 250 pages, of Source Code 

during the duration of the case without prior written approval of the Producing Party. 

(e) The Receiving Party 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 one (1) 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 

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Party. The Receiving Party shall maintain all paper copies of any printed portions of the source 

code in a secured, locked area. The Receiving Party shall not create any electronic or other images 

of the paper copies and shall not convert any of the information contained in the paper copies into 

any electronic format. The Receiving Party shall only request additional paper copies if such 

additional copies are (1) necessary to attach to court filings, pleadings, or other papers (including 

a testifying Expert’s expert report), (2) necessary for deposition, or (3) necessary for trial. The 

Receiving Party shall not request paper copies for the purposes of reviewing the source code other 

than electronically as set forth in paragraph (c) in the first instance. To the extent a deposition 

taking place at Latham & Watkins LLP’s office in Menlo Park, California is likely to involve 

Facebook’s source code, the Party taking the deposition shall provide at least five (5) business 

days written notice of that fact, and the Facebook will make a source code computer available at 

the deposition, minimizing the need for additional paper copies of source code. To the extent a 

deposition taking place elsewhere is likely to involve source code, the Party taking the deposition 

shall provide at least eight (8) business days written notice of that fact, and Facebook will make a 

source code computer available at the deposition, by electing either to make a source code 

computer available at the noticed location for the deposition or to arrange for the deposition to take 

place at Latham & Watkins LLP’s office in Menlo Park, California with a source code computer 

available, minimizing the need for additional paper copies of source code. The Producing Party is 

not required to create a new Source Code Computer for the purpose of depositions. Any paper 

copies used during a deposition shall be retrieved by the Producing Party at the end of each day 

and must not be given to or left with a court reporter or any other individual.

(f) The Producing Party shall install tools that are sufficient for viewing the 

code produced. The Receiving Party’s Outside Counsel and/or experts/consultants may request 

that commercially available software tools for viewing and searching Source Code be installed on 

the Source Code 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 

Case 1:20-cv-00214-ADA Document 39-1 Filed 09/10/20 Page 16 of 25
17

review of the Source Code consistent with all of the protections herein. The Producing Party shall 

approve reasonable requests for additional commercially available software tools. The Receiving 

Party must provide the Producing Party with the CD, DVD, file path, or Advanced Package Tool 

package containing such licensed software tool(s) at least six (6) business 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. The Producing Party shall make reasonable attempts to install the 

requested software but will not be held responsible for the proper setup, functioning, or support of 

any software requested by the Receiving Party. By way of example, the Producing Party will not 

compile or debug software for installation.

(g) 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. 

(h) Notwithstanding the foregoing, the Receiving Party’s Outside Counsel 

and/or experts/consultants shall be entitled to take notes relating to the Source Code on paper, 

computer, or a tablet, but may not copy the Source Code into the notes and may not take such notes 

electronically on the Source Code Computer itself. To the extent the Receiving Party desires to 

take notes electronically (computer or tablet), the Producing Party shall provide a note-taking 

computer (e.g., a computer, which is distinct from the source code computer, that is not linked to 

any network, including a local area network (“LAN”), an intranet, or the Internet, and has image 

making functionality of any type disabled, including but not limited to camera and video 

functionality) (“note-taking computer”) with a current, widely used word processing program in 

the source code review room for the Receiving Party’s use in taking such notes. The note-taking 

computer shall have disk-encryption and be password protected. The note-taking computer shall 

be used for the sole purpose of note-taking and shall be retained by the Producing Party. The 

Producing Party will instruct the Receiving Party on how to start, log on to, and operate the note 

taking computer. The Receiving Party will save any notes taken on the note taking computer to a 

folder labeled “Source Code Notes.” Such notes shall be designated as and treated as HIGHLYCase 1:20-cv-00214-ADA Document 39-1 Filed 09/10/20 Page 17 of 25
18

CONFIDENTIAL – SOURCE CODE material, and shall be treated as copies of source code as set 

forth in Section 9(d)-(f), except that at the end of each day of source code inspection, under the 

supervision of the Producing Party, such notes shall be saved on a removable encrypted and 

password protected drive supplied by the Producing Party and given to the Receiving Party to 

retain. Such notes shall be limited to a total of one hundred (100) pages for the Receiving Party 

(for the case, not per inspection). In the event this limit is inadequate for the Receiving Party, the 

Parties agree to negotiate in good faith to establish a reasonable extension of that limit. The 

Producing Party will thereafter delete or destroy the electronic notes on the note-taking computer, 

without reviewing the substance of the notes. The note-taking computer shall have no features 

that will hinder the complete clearing of the Receiving Party’s notes after such notes have been 

printed or downloaded. The Producing Party will not review the Source Code Notes, will not log 

key strokes with respect to the note taking, and will not otherwise attempt to discover the Receiving 

Party’s work product related to the source code review. Except as provided expressly in this 

paragraph, use or possession of any recordable media or recordable devices during the inspection 

by anyone other than the Producing Party is prohibited.

Any such notes shall not include copies or reproductions of the source code, but may refer 

to files, functions, variables, names, or other identifiers from the source code. The Receiving Party 

will be entitled to password protect the Source Code Notes folder and/or Word documents 

contained therein.

The Parties agree that if there are any disputes regarding the Receiving Party’s notes, all 

notes taken by the Receiving Party shall be subject to in camera review to ensure compliance with 

this Protective Order.

(i) The Receiving Party’s Outside Counsel 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 

Case 1:20-cv-00214-ADA Document 39-1 Filed 09/10/20 Page 18 of 25
19

in use. No more than a total of three (3) persons1 identified by the Receiving Party, excluding 

Outside Counsel, shall have access to the Source Code.

10. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 

LITIGATION

10.1 If a Party is served with a subpoena or a court order issued in other litigation that 

compels disclosure of any information or items designated in this action as “CONFIDENTIAL” 

or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY 

CONFIDENTIAL – SOURCE CODE” that Party must:

(a) promptly notify in writing the Designating Party. Such notification shall include a copy 

of the subpoena or court order;

(b) promptly notify in writing the party who caused the subpoena or order to issue in the 

other litigation that some or all of the material covered by the subpoena or order is subject to this 

Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and

(c) cooperate with respect to all reasonable procedures sought to be pursued by the 

Designating Party whose Protected Material may be affected.

If the Designating Party timely seeks a protective order, the Party served with the subpoena 

or court order shall not produce any information designated in this action as “CONFIDENTIAL” 

or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY 

CONFIDENTIAL – SOURCE CODE” before a determination by the Court from which the 

subpoena or order issued, unless the Party has obtained the Designating Party’s permission. The 

Designating Party shall bear the burden and expense of seeking protection in that court of its 

confidential material – and nothing in these provisions should be construed as authorizing or 

encouraging a Receiving Party in this action to disobey a lawful directive from another court.

10.2 The provisions set forth herein are not intended to, and do not, restrict in any way 

the procedures set forth in Federal Rule of Civil Procedure 45(d)(3) or (f).

1 For the purpose of this provision, a “person” does not include an individual’s employees, staff, partners, 

consultants, or any other direct or indirect reports.

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11. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS 

LITIGATION

(a) The terms of this Order are applicable to information produced by a Non-Party in 

this action and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE.” Such 

information produced by Non-Parties in connection with this litigation is protected by the remedies 

and relief provided by this Order. Nothing in these provisions should be construed as prohibiting 

a Non-Party from seeking additional protections.

(b) In the event that a Party is required, by a valid discovery request, to produce a NonParty’s confidential information in its possession, and the Party is subject to an agreement with the 

Non-Party not to produce the Non-Party’s confidential information, then the Party shall:

1. promptly notify in writing the Requesting Party and the Non-Party that 

some or all of the information requested is subject to a confidentiality agreement with a Non-Party; 

and

2. promptly provide the Non-Party with a copy of the Stipulated Protective 

Order in this litigation, the relevant discovery request(s), and a reasonably specific description of 

the information requested.

(c) If the Non-Party fails to object or seek a protective order from this court within a 

reasonable period of time after receiving the notice and accompanying information, including but 

not limited to any contractual notice period in an agreement between the Producing Party and the 

Non-Party covering the confidentiality and/or disclosure of the information requested, the 

Producing Party may produce the Non-Party’s confidential information responsive to the discovery 

request. If the Non-Party timely seeks a protective order, the Producing Party shall not produce 

any information in its possession or control that is subject to the confidentiality agreement with 

the Non-Party before a determination by the Court.

12. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

Case 1:20-cv-00214-ADA Document 39-1 Filed 09/10/20 Page 20 of 25
21

If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 

Material to any person or in any circumstance not authorized under this Stipulated Protective 

Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the 

unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected 

Material, (c) inform the person or persons to whom unauthorized disclosures were made of all the 

terms of this Order, and (d) request such person or persons to execute the “Acknowledgment and 

Agreement to Be Bound” that is attached hereto as Exhibit A.

13. PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL

The parties have agreed to abide by a 502(d) (clawback) stipulation that will be 

filed as a separate document.

14. MISCELLANEOUS

14.1 Right to Further Relief. Nothing in this Order abridges the right of any person to 

seek its modification by the Court in the future.

14.2 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 on any ground not addressed in this Stipulated Protective Order. 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.

14.3 Export Control. The Protected Material disclosed by the Producing Party may 

contain technical data subject to export control laws and therefore the release of such technical 

data to foreign persons or nationals in the United States or elsewhere may be restricted. 

The Receiving Party shall take measures necessary to ensure compliance with applicable export 

control laws, including confirming that no unauthorized foreign person has access to such technical 

data.

No Protected Material may leave the territorial boundaries of the United States of 

America. Without limitation, this prohibition extends to Protected Information (including copies) 

in physical and electronic form. The viewing of Protected Information through electronic means 

Case 1:20-cv-00214-ADA Document 39-1 Filed 09/10/20 Page 21 of 25
22

outside the territorial limits of the United States of America is similarly prohibited. The 

restrictions contained within this paragraph may be amended through the express written consent 

of the Producing Party to the extent that such agreed to procedures conform with applicable export 

control laws and regulations. Nothing in this paragraph is intended to remove any obligation that 

may otherwise exist to produce documents currently located in a foreign country. 

14.4 Filing Protected Material. Without written permission from the Designating Party 

or a court order secured after appropriate notice to all interested persons, a Party may not file in 

the public record in this action any Protected Material.

14.5 Privilege Logs. No Party is required to identify on its respective privilege log any 

document or communication dated after the filing of the Complaint. The parties shall exchange 

their respective privilege logs at a time to be agreed upon by the parties following the production 

of documents, or as otherwise ordered by the Court. 

15. FINAL DISPOSITION

Within 60 days after the final disposition of this action, as defined in paragraph 4, 

each Receiving Party must return all Protected Material to the Producing Party or destroy such 

material. As used in this subdivision, “all Protected Material” includes all copies, abstracts, 

compilations, summaries, and any other format reproducing or capturing any of the Protected 

Material. The Receiving Party’s reasonable efforts shall not require the return or destruction of 

Protected Material from (i) disaster recovery or business continuity backups, (ii) data stored in 

system-generated temporary folders or near-line storage, (iii) archived data with limited end-user 

accessibility, and/or (iv) material that is subject to legal hold obligations or commingled with other 

such material. Whether the Protected Material is returned or destroyed, the Receiving Party must 

submit a written certification to the Producing Party (and, if not the same person or entity, to the 

Designating Party) by the 60-day deadline that (1) identifies (by category, where appropriate) all 

the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has 

not retained any copies, abstracts, compilations, summaries or any other format reproducing or 

capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to 

Case 1:20-cv-00214-ADA Document 39-1 Filed 09/10/20 Page 22 of 25
23

retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, 

legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work 

product, and consultant and Expert work product, even if such materials contain Protected 

Material, with the exception of paper copies of source code. Any such archival copies that contain 

or constitute Protected Material remain subject to this Protective Order as set forth in Section 4 

(DURATION). 

DATED: September 10, 2020

/s/ Chandran B. Iyer with permission, by 

Michael E. Jones

Raymond W. Mort, III

raymort@austinlaw.com

THE MORT LAW FIRM, PLLC

100 Congress Avenue, Suite 2000

Austin, Texas 78701

Tel/Fax: 512-865-7950

Of Counsel:

Ronald M. Daignault

rdaignault@goldbergsegalla.com

Chandran B. Iyer

ciyer@goldbergsegalla.com

Oded Burger

oburger@ goldbergsegalla.com

GOLDBERG SEGALLA LLP

711 Third Avenue, Suite 1900

New York, New York 10017

Tel: (646) 292-8700

Attorneys for Plaintiff 

Onstream Media Corporation

/s/ Lisa K. Nguyen with permission, 

by Michael E. Jones

Michael E. Jones (Bar No. 10929400)

POTTER MINTON, P.C.

110 North College, Suite 500

Tyler, Texas 95702

Tel: (903) 525-2239 | Fax: (903) 593-0846

mikejones@potterminton.com

Of Counsel:

Lisa K. Nguyen – Lead Counsel

Douglas E. Lumish 

Richard G. Frenkel 

Clara Wang 

LATHAM & WATKINS, LLP

140 Scott Drive

Menlo Park, California 94025

Tel: (650) 328-4600 | Fax: (650) 463-2600

Lisa.Nguyen@lw.com

Doug.Lumish@lw.com

Rick.Frenkel@lw.com

Clara.Wang@lw.com

Kyle A. Virgien 

Allison K. Harms 

LATHAM & WATKINS, LLP

505 Montgomery Street, Suite 2000

San Francisco, California 94111

Tel: (415) 391-0600 | Fax: (415) 395-8095

Kyle.Virgien@lw.com

Case 1:20-cv-00214-ADA Document 39-1 Filed 09/10/20 Page 23 of 25
24

Allison.Harms@lw.com

Tiffany C. Weston 

LATHAM & WATKINS, LLP

555 Eleventh Street, NW, Suite 1000

Washington, D.C. 20004

Tel: (202) 637-2200 | Fax: (202) 637-2201

Tiffany.Weston@lw.com

Attorneys for Defendant Facebook, Inc. 

IT IS SO ORDERED, this _____ day of ____________________ 20__. 

____________________________________________ 

THE HONORABLE ALAN D. ALBRIGHT

Case 1:20-cv-00214-ADA Document 39-1 Filed 09/10/20 Page 24 of 25
25

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

ONSTREAM MEDIA CORPORATION, §

§

Plaintiff, §

§

v. §

§

FACEBOOK, INC., §

§

Defendant. §

CIVIL ACTION No. 1:20-cv-00214-ADA

JURY TRIAL DEMANDED

EXHIBIT A

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

I, _____________________________, declare under penalty of perjury that I have read in its 

entirety and understand the Stipulated Protective Order that was issued by the United States District Court 

for the Western District of Texas in the case of Onstream Media Corporation v. Facebook, Inc., Case No. 

1:20-cv-00214-ADA. I agree to comply with and to be bound by all the terms of this Stipulated Protective 

Order and I understand and acknowledge that failure to so comply could expose me to sanctions and 

punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner any 

information or item that is subject to this Stipulated Protective Order to any person or entity except in strict 

compliance with the provisions of this Order. I further agree to submit to the jurisdiction of the United 

States District Court for the Western District of Texas for the purpose of enforcing the terms of this 

Stipulated Protective Order, even if such enforcement proceedings occur after termination of this action.

Printed name: _______________________________

Title: ______________________________________

Address: ___________________________________

Signature: __________________________________

Date: ______________________________________

Case 1:20-cv-00214-ADA Document 39-1 Filed 09/10/20 Page 25 of 25