Joint Motion for Entry of 

Disputed Protective Order Page | 1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS 

WACO DIVISION

WSOU INVESTMENTS, LLC D/B/A 

BRAZOS LICENSING AND 

DEVELOPMENT,

Plaintiff,

v. 

MICROSOFT CORPORATION,

Defendant.

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CIVIL ACTION 6:20-cv-00454-ADA

CIVIL ACTION 6:20-cv-00455-ADA

CIVIL ACTION 6:20-cv-00456-ADA

CIVIL ACTION 6:20-cv-00457-ADA

CIVIL ACTION 6:20-cv-00458-ADA

CIVIL ACTION 6:20-cv-00459-ADA

CIVIL ACTION 6:20-cv-00460-ADA

CIVIL ACTION 6:20-cv-00461-ADA

CIVIL ACTION 6:20-cv-00462-ADA

CIVIL ACTION 6:20-cv-00463-ADA

CIVIL ACTION 6:20-cv-00464-ADA

CIVIL ACTION 6:20-cv-00465-ADA

JOINT MOTION FOR ENTRY OF DISPUTED PROTECTIVE ORDER

TO THE HONORABLE COURT:

The parties jointly move for entry of a protective order. While the parties have reached 

agreement on most items, three items remain in dispute. The parties’ respective positions are 

summarized briefly below. A proposed protective order with the disputes highlighted is attached 

as Exhibit A. 

Plaintiff’s Proposal Defendant’s Proposal

The receiving Party shall not print more than 

1000 pages for each software release.

The receiving Party shall not print more than 

ten (10) consecutive pages of continuous 

Source Code. The receiving Party may request 

permission to print additional consecutive 

pages of continuous Source Code. Such 

requests shall not be unreasonably denied by 

the producing Party. In addition, the receiving 

Party shall be limited to printing a total of two 

hundred and fifty (250) pages of Source Code

per case, a page being defined as an 8.5” x 11” 

paper page with 1.25” margins and using no 

smaller than a 12-point font. 

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I. Plaintiff’s Position

This Court’s working group draft of a standard protective order contains no limits on the 

number of source code printouts. Similarly, the standard EDTX protective contains no limit on 

such printouts – relying instead on a “reasonable number.” 1 Microsoft has previously agreed to 

protective orders with no specified limits. See e.g., Seed Spring, et al. v. Microsoft Corporation, 

Case No. 6:17-cv-427 (E.D. Tex.)(Aug. 24, 2017)2 and Soverain IP, LLC v. Microsoft 

Corporation, Case No. 2:17-cv-204 (E.D. Tex.)(Aug. 23, 2017).3 Because Microsoft insists on a 

presumptive limit as opposed to a “reasonable number,” WSOU agreed to the same language 

Microsoft previously agreed to in Dynamic Data Technologies v. Samsung Electronics, et al, 

Lead Case No. 2:18-cv-459 (E.D. Tex.)(April 24, 2019),4 namely 1,000 pages per software 

release. Microsoft rejected WSOU’s Offer. WSOU alternatively offered a presumptive page 

limits based on 2% of the source code. Again, Microsoft rejected WSOU’s proposal. 

Microsoft’s proposal of 250 pages total per case should be rejected for several reasons. 

First, Microsoft represented to the Court that source code was important – the “definitive 

source of evidence.” This representation was made in a hearing before the Court on November 

30, 2020. WSOU requested this hearing because Microsoft only provided access to source code 

instead of producing technical documents like requirements documents or engineering notes. 

Microsoft argued that these technical documents needed not be provided because “there's one 

definitive source of evidence for what software does, and that is its source code.” Hearing Tr. at 

03:34. Now, despite this representation, Microsoft seeks to limit the ability to print out such a 

“definitive source of evidence.” 

1

See 

https://www.txed.uscourts.gov/sites/default/files/judgeFiles/Sample_Protective_Order_Patent_Cases_%28April%20

2019%29.docx (“The receiving Party shall be permitted to make a reasonable number of printouts and photocopies 

of Source Code Material, all of which shall be designated and clearly labeled “RESTRICTED CONFIDENTIAL 

SOURCE CODE,” and the receiving Party shall maintain a log of all such files that are printed or photocopied.”) 

2 Dkt. No. 173 (Agreed Protective Order) and Dkt. No. 173-1 (Proposed Order reciting “a reasonable number of 

printouts and photocopies of Source Code Material . . . “). 

3 Dkt. No. 14 (Agreed Protective Order) and Dkt. No. 14-1 (Proposed Order reciting “a reasonable number of printouts 

and photocopies of Source Code Material . . . “). 4 Dkt. No. 76 (Joint Motion for Agreed Protective Order) and Dkt. No. 76-1 (Proposed Order reciting “[n]o more than 

1000 pages of Total Source Code Material (not including copies of original printouts) for any software release . . . “). 

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Second, as noted above, Microsoft already agreed to the exact same limits in an earlier 

case. WSOU provided that case to Microsoft in the meet and confer process. Microsoft has 

neither provided a good reason for the artificial page limit in this case nor explained how earlier

Dynamic Data case is different. 

Third, WSOU’s experts have spent months reviewing the large volume of code 

produced by Microsoft and can affirmatively state that 250 pages is not enough to document the 

operation of the Accused Instrumentalities. There are often multiple versions of the code and 

multiple modules used in operation. Limiting the ability to print out this evidence severely 

prejudices WSOU. This is why WSOU alternatively suggested some percentage of the code (e.g., 

2%). Microsoft also rejected that – and any other reasonable tether to the amount of code. 

Fourth, Microsoft’s contention that WSOU can simply extend this 250-page limit upon a 

showing of “good cause” should likewise be rejected. WSOU is already there and is unable to 

print out the source code from the computers until this issue is resolved. Microsoft has offered 

no alternatives to account for the large volumes of source code it made available for inspection 

or the multiple versions of the software. 

Microsoft’s separate requirement limiting the number of consecutive pages to ten (10) 

should also rejected. WSOU has already agreed to an overall presumptive limit on pages (1,000); 

and, Microsoft has provided no good reason for imposing the limiting consecutive page count. 

As WSOU’s experts can attest, relevant source modules in this case already exceed ten (10) pages 

– meaning that the parties would have to return to the Court for permission to actually print out 

such relevant modules should Microsoft refuse to allows such pages to be print out. If the Court 

is inclined to impose a consecutive page count limit for this case, it should be something more 

reasonable – 50 pages. 

Finally, Microsoft proposes defining the parameters of a “page.” WSOU does not see this 

as necessary and is concerned that this another attempt by Microsoft to decrease WSOU’s ability 

to use what Microsoft, again, called the definitive source of evidence. For example, the default 

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“margin” for Microsoft’s own word processing program, Word, is one-inch.5 Likewise, this Court 

requires briefs to have one-inch margins.6 Yet, Microsoft want to decrease page size only have 

1.25-inch margins. On font-size, cannot possibly guess whether 12-point font might be 

appropriate for every scenario. Rather than specifying page sizes, the parties should simply be 

reasonable on print requests. 

II. Defendant’s Position

Microsoft’s proposal reflects the parties’ original agreement that a total of 250 pages of 

Source Code may be printed per case, subject to reasonable requests for permission to print 

additional pages. The parties have agreed that WSOU may request permission to print additional 

pages, which shall not be unreasonably denied. Despite having agreed to the 250 pages per case 

limit during the parties’ first round of meet and confers over the protective order, WSOU has 

reneged on the agreement and now seeks 1000 pages for each “software release,” which is both 

undefined and excessive. It is not clear what WSOU believes constitutes a “software release” or 

why it believes each “software release” should entitle it to another 1000 pages of Source Code 

printouts. As software products evolve, code is reused and updated only as needed. Even 

assuming, arguendo, that WSOU intends to count each top-level Source Code folder made 

available for production as a “software release,” this will result in an excessive number of 

printouts. For example, for Xbox alone (Case Nos. 6:20-cv-455 and -457), there are at least 8 toplevel folders that have been made available for inspection, which under WSOU’s proposal would 

entitle it to at least 8,000 pages of printouts. This is not proportional to the needs of these cases, 

5 https://support.microsoft.com/en-us/office/change-the-margins-in-your-word-document-c95c1ea1-70b1-4ddea1da-f5aa2042c829

6 https://www.txwd.uscourts.gov/court-information/frequently-asked-questions/

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where WSOU accuses very specific functionality within the software products, and unreasonably 

puts Microsoft’s proprietary Source Code at risk. 

In addition, WSOU’s proposal does not limit the number of consecutive pages of 

continuous Source Code that may be printed, leading to the possibility that, under its proposal, it 

could simply print 1000 pages of Source Code for further and extensive review away from the 

protections provided by the Source Code computers. The reason to limit the number of consecutive 

pages is simple. Even with a Protective Order in place, there is some risk of disclosure to 

unauthorized persons. Any disclosure of Source Code will cause competitive harm to Microsoft, 

but disclosure of considerable sections of consecutive pages exponentially increases that risk. 

Accordingly, Microsoft proposes a reasonable limitation of 10 consecutive pages. To the extent 

WSOU reasonably believes a section of more than 10 consecutive pages is critical to make out its 

case, Microsoft is willing to engage with WSOU in good faith to increase the number of 

consecutive pages on a case-by-case basis. Microsoft’s proposal strikes a balance between 

allowing WSOU the printouts it needs for its case, while safeguarding Microsoft’s intellectual 

property for core software products.

Plaintiff’s Proposal Defendant’s Proposal

[d]uring the pendency of this Action and for 

one year after its conclusion, including any 

appeals or two years after such person last 

reviewed the HIGHLY SENSITIVE 

TECHNICAL MATERIAL, whichever is 

earlier.

[d]uring the pendency of this Action and for 

one year after its conclusion, including any 

appeals or two years after such person has 

terminated their involvement in this Action 

by filing of a notice of withdrawal with the 

Court, whichever is earlier.

I. Plaintiff’s Position

WSOU proposed often-used language in prosecution bars concerning an alternative time 

period when a prosecution bar should no longer apply to a person -- “two years after such person 

last reviewed the HIGHLY SENSITIVE TECHNICAL MATERIAL.” This language reflects the 

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simple fact that memories fade over time and that the principal expiration clause, which is tied to 

the case ending (including the appeals), can go on for years. This same language has either been 

agreed to by parties or used by Courts in at least the following cases:

 13 Cases: Uniloc 2017, LLC v. Google LLC, Case Nos. 2:18-cv-491-504-JRG-RSP (E.D. 

Tex.)(Jun. 14, 2019) (“two years after such person last reviewed the HIGHLY 

SENSITIVE TECHNICAL MATERIAL . . . ”)

 5 Cases: Uniloc 2017, LLC v. Google LLC, Case Nos. 2:18-cv-548, 550-553-JRG (E.D. 

Tex.)(Jul. 2, 2019)( “two years after such person last reviewed the HIGHLY SENSITIVE 

TECHNICAL MATERIAL . . .”)

 Kojicast, LLC v. Funimation Productions, LLC, Case Nos. 2:19-cv-132 (E.D. Tex.)(Jul. 

19, 2019)(“two years after such person last reviewed the HIGHLY SENSITIVE 

TECHNICAL MATERIAL . . . ”)

 Keurig, Incorporated v. Sturm Foods, Inc., Case No. 10-841-SLR-MPT (D. Del.)(July 6, 

2001)(“two years after that person’s last review of the Designated Material”)

 Uniloc 2017, LLC v. Kaspersky Lab, Inc., Case No. 2:19-cv-219-JRG (E.D. Tex.)(Nov. 

19, 2019)( (“two years after such person last reviewed the HIGHLY SENSITIVE 

TECHNICAL MATERIAL . . . ”)

 Uniloc 2017, LLC v. Kik Interactive, Inc., Case No. 2:19-cv-150-JRG-RSP (E.D. 

Tex.)(Aug. 11, 2020)( (“two years after such person last reviewed the HIGHLY 

SENSITIVE TECHNICAL MATERIAL . . . ”)

 Uniloc 2017, LLC v. Riot Games, Inc., Case No. 2:19-cv-223-JRG (E.D. Tex.)(Mar. 19, 

2020)(two years after such person last reviewed the HIGHLY SENSITIVE TECHNICAL 

MATERIAL . . . ”)

 Pass & Seymour, Inc. v. General Protecht Group, Inc. et al., Case No. 5:077-cv-833 (N.D. 

N.Y.)(Dec. 21, 2011)(“for a period of eighteen months (18) months from his or her last 

review of such information.”) 

 Prism Technologies v. Research in Motion, Ltd el al, Case No. 8:08-cv-537 (D. Neb)(Feb. 

9, 2010)(“two years (for examination prosecution and support) after that person’s last 

review of the designated information . . . ”). 

 WM Wrigley Jr. Co, v. Cadbury Adams USA, Case No. 2:04-cv-346 (N.D. Ill.)(Jan. 21, 

2005)(“three years after that person’s last review of the designated information . . .”)

 Vest Corporation v. Amdocs Management Limited et al., Case No. 3:14-cv-1142 (D. 

Ore.)(Feb. 21, 2017)(“two years after the person last reviews the source code . . . ”).

Microsoft agreed in principle but rejected such language, arguing that it is difficult to track when 

a person “last reviewed.” Accordingly, Microsoft proposed using a “notice of withdrawal” as a 

trigger. This proposal should be rejected for the simple fact that it ignores non-attorneys like 

paralegals and experts that will also have access to confidential information. These people neither 

appear nor withdraw; and, accordingly, this alternative clause is inapplicable to them. The mere 

fact that it may be difficult to track when one last accessed confidential information is not a good 

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reason to reject this language. Indeed, Microsoft agreed to the “last review” language as a third 

party in Sun Microsystems, Inc. v. Network Appliance, Inc., Case No. 3:08-cv-1641 (N.D.Ca.) 

(Nov. 30, 2019))(“beginning upon the person’s first review of Microsoft code and ending two 

years after (1) that person’s last review of Microsoft code . . . ”).7 And, all the parties in the cases 

above used the “last review” – type language. 

II. Defendant’s Position

WSOU’s proposal provides that the prosecution bar no longer applies if two years have 

passed since such person has reviewed highly sensitive technical material. WSOU’s proposal 

does not provide a person who has reviewed highly sensitive technical material with certainty 

that he or she is not inadvertently violating the provisions of this protective order. As a practical 

matter, it is not possible to track or monitor when a person last reviewed such material, as dates 

of access are not required to be logged or tracked. Microsoft’s proposal, which is keyed off of 

the filing of a notice of withdrawal with the Court, provides a date certain that can be more 

readily tracked and enforced.

Plaintiff’s Proposal Defendant’s Proposal

In the event that a Party is required, by a valid 

discovery request, to produce a Non-Party’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: 

promptly, no later than three (3) business 

days after such an obligation is discovered,

notify in writing the Requesting Party and the 

Non-Party simultaneously that some or all of 

In the event that a Party is required, by a valid 

discovery request, to produce a Non-Party’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: 

promptly notify in writing the Requesting 

Party and the Non-Party simultaneously that 

some or all of the information requested is 

subject to a confidentiality agreement with a 

Non-Party;

7 In this case, Microsoft agreed to “whichever is later date” as opposed to a “whichever is earlier” date. Microsoft, 

however, did agree to use the proposed “last review” date as a trigger. 

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the information requested is subject to a 

confidentiality agreement with a Non-Party

I. Plaintiff’s Position

The final dispute concerns whether a specific number should be inserted for an obligation 

concerning promptness in Paragraph 13, 1(a). The particular paragraph deals with an inability to 

produce third-party information due to existing confidentiality agreements. The parties agree 

that these third parties should be contacted “promptly” but disagree whether a time should be 

included. WSOU proposed three business days after an obligation is discovered. Microsoft 

suggests no date – suggesting that they believe something longer than three days is appropriate. 

WSOU’s proposal provides objectivity in the otherwise relative and subjective term “promptly,” 

which hopefully reduces any chance of further dispute arising from this term.

This entire clause was included at the request of Microsoft. WSOU agreed; however, 

WSOU believes there should be some period defined that is “prompt.” WSOU has also been open 

to other suggestions. 

II. Defendant’s Position

WSOU’s proposal to require notification to non-parties of potential production of nonparty confidential information within three business days “after such an obligation is discovered” 

is neither enforceable nor practical. WSOU does not define when “an obligation is discovered.” 

WSOU’s proposal is not enforceable, as there is no way for the requesting party to know when 

the producing party first discovered that it needed to provide notice to a non-party regarding the 

non-party’s confidential information such that three business days could be precisely tracked. 

WSOU’s proposal is also impractical, inefficient, and unnecessarily burdensome. If, for 

example, a party spends two weeks reviewing a collection of documents for production, in which 

information of a particular non-party appears at both the beginning and the end of the set, under 

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WSOU’s proposal the party will have to send multiple notice letters to the same non-party. This 

unnecessarily burdens both the producing party and the non-party with serial notice letters. 

Microsoft’s proposal, which requires prompt notification to non-parties, avoids unnecessary 

delays in the production of non-party confidential information without setting forth impractical 

and unenforceable deadlines.

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DATED: March 29, 2021 Respectfully submitted,

By: /s/Ryan S. Loveless

Mark D. Siegmund

State Bar No. 24117055

mark@waltfairpllc.com

Law Firm of Walt, Fair PLLC.

1508 North Valley Mills Drive 

Waco, Texas 76710

Telephone: (254) 772-6400

Facsimile: (254) 772-6432

James L. Etheridge

Texas State Bar No. 24059147

Ryan S. Loveless

Texas State Bar No. 24036997

Travis L. Richins

Texas State Bar No. 24061296

Brett A. Mangrum

Texas State Bar No. 24065671

Jeffrey Huang

ETHERIDGE LAW GROUP, PLLC

2600 E. Southlake Blvd., Suite 120 / 324

Southlake, Texas 76092

Telephone: (817) 470-7249

Facsimile: (817) 887-5950

Jim@EtheridgeLaw.com

Ryan@EtheridgeLaw.com

Travis@EtheridgeLaw.com

Brett@EtheridgeLaw.com

JeffH@EtheridgeLaw.com

Counsel for Plaintiff WSOU Investments, LLC

DATED: March 29, 2021 Respectfully submitted,

By: /s/ Brooke Boll

Barry K. Shelton 

Texas State Bar No. 24055029

SHELTON COBURN LLP

311 RR 620 S, Suite 205

Austin, TX 78734

Telephone: (512) 263-2165

Fax: (512) 263-2166

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bshelton@sheltoncoburn.com

Michael J. Bettinger

Irene Yang

SIDLEY AUSTIN LLP

555 California St., Suite 2000

San Francisco, CA 94104

Telephone: (415) 772-1200

Fax: (415) 772-7400

mbettinger@sidley.com 

irene.yang@sidley.com 

Richard A. Cederoth

John W. McBride

SIDLEY AUSTIN LLP

1 South Dearborn St.

Chicago, IL 60603

Telephone: (312) 853-7000

Fax: (312) 853-7036

rcederoth@sidley.com 

jwmcbride@sidley.com 

Attorneys for Defendant Microsoft Corporation

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