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. 

DELL TECHNOLOGIES INC., DELL INC., 

EMC CORPORATION, AND VMWARE, 

INC., 

 Defendants. 

Case No. 6:20-cv-00473-ADA 

Case No. 6:20-cv-00474-ADA 

Case No. 6:20-cv-00475-ADA 

Case No. 6:20-cv-00476-ADA 

Case No. 6:20-cv-00477-ADA 

Case No. 6:20-cv-00478-ADA 

Case No. 6:20-cv-00479-ADA 

Case No. 6:20-cv-00480-ADA 

Case No. 6:20-cv-00481-ADA 

Case No. 6:20-cv-00482-ADA 

Case No. 6:20-cv-00485-ADA 

Case No. 6:20-cv-00486-ADA 

JURY TRIAL DEMANDED 

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR 

ENTRY OF DISPUTED PROTECTIVE ORDER

Case 6:20-cv-00475-ADA Document 122 Filed 11/19/21 Page 1 of 19
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I. INTRODUCTION 

In June 2021, counsel for Defendants conferred with counsel for WSOU and negotiated a 

resolution to each disputed provision in the protective order except for Defendants’ proposed 

acquisition bar. Such a narrow dispute could have been efficiently and promptly raised and 

resolved. But for more than four months following those negotiations, WSOU systematically 

ignored Defendants’ requests to finalize the protective order—just as WSOU had ignored 

Defendants’ protective order proposals for several months earlier this year. After a year had passed 

since the parties first began protective order negotiations, and with only five weeks left before the 

close of fact discovery, WSOU finally responded this month, only to propose dozens of new 

revisions it now submits in this motion. WSOU’s proposals, which contradict what the parties had 

already agreed months back, should be rejected as untimely raised. 

Defendants nonetheless set forth below the basis for its proposals, which are uniformly 

preferable to WSOU’s alternately contradictory, ambiguous, and unnecessary counterproposals. 

WSOU’s reliance throughout its brief on a protective order that was stipulated by agreement with 

Microsoft provides no guidance for resolving this dispute. On the contrary, WSOU disputes here 

provisions that WSOU has itself agreed to in other co-pending cases in this District. Defendants 

respectfully request entry of the proposed protective order filed concurrently herewith. 

II. FACTUAL BACKGROUND 

The parties first began exchanging protective order proposals in October 2020 when 

WSOU proposed Judge Gilstrap’s default protective order from the Eastern District of Texas. 

(May 10, 2021 Email from A. Blythe (Ex. 1) at 13.) Defendants proposed an order tailored to the 

specific needs of this case, working from an example previously entered in the Western District of 

Texas. (Id. at 12-13.) Despite significant overlap in the substance of the proposals, WSOU refused 

to consider Defendants’ proposals until Defendants ported their proposal into the Eastern District 

Case 6:20-cv-00475-ADA Document 122 Filed 11/19/21 Page 2 of 19
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of Texas default, which Defendants provided on November 25, 2020. (Id. at 5-12.) On December 

16, 2020, WSOU provided a counterproposal, and Defendants responded on January 26, 2021, 

requesting a time counsel for WSOU was available to confer. (Id. at 4.) WSOU never responded. 

Defendants followed up on February 22, 2021 with no response, and after this Court 

published a default standard protective order in March 2021, Defendants followed up again, 

porting its January 26 proposal into the format of this Court’s default. (Id. at 1-2.) After three 

months without a response, WSOU responded with a proposal on April 25, 2021. (Id. at 2.) 

Defendants accepted what changes it could and responded on May 10, 2021, only one week into 

the fact discovery period. (Id. at 1.) WSOU never responded to this proposal. 

In order to move the process forward, local counsel for Defendants and WSOU conferred 

in the first week of June 2021, reaching a compromise proposal on all outstanding issues except 

for the acquisition bar, a provision Defendants proposed in view of WSOU’s acquisition of 

thousands of patents. Defendants sent a copy memorializing that agreement, with Defendants’ 

proposed acquisition bar in track changes, on June 29, 2021. (July 8, 2021 Email from B. Shelton 

(Ex. 2) at 1.) Despite Defendants follow-up on July 8 (id.) and July 23 (July 23, 2021 Email from 

M. Siegmund (Ex. 3)), WSOU never responded to the proposal. Defendants followed up again on 

October 14, 2021, also without response. (October 14, 2021 Email from B. Shelton (Ex. 4).) 

When Defendants followed up again on October 29, 2021 with a joint dispute chart teeing 

up the acquisition bar for the Court’s consideration, WSOU finally responded, proposing the 

dozens of changes now in dispute on November 1, 2021. WSOU refused to join Defendants in 

submitting the protective order as a joint dispute, instead filing a 20-page motion1 to which 

 

1

 WSOU’s 20-page motion violates the 10-page limit set forth in Civil Local Rule 7(C)(2). 

Defendants rely on 15 pages here to respond to WSOU’s improper volume of argument. 

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Defendants now respond. While, in an effort to narrow the issues, Defendants were able to accept 

several of WSOU’s last-minute proposals—some of which WSOU failed to include in its exhibit 

of the parties’ competing proposals2

—Defendants oppose each of WSOU’s present proposals. 

III. ARGUMENT 

A. Paragraph 5(a): Access to Protected Material for Counsel Not of Record 

Defendants’ proposal ensures that Protected Material is limited to the appropriate outside 

counsel of record (and their firms). In contrast, the additional language in WSOU’s proposal—

“and outside counsel retained for the purpose of this litigation”—is an amorphous expansion of 

who has access. By adding this language, WSOU is able to hire outside firms, not of record in this 

litigation, without identification (including the ability of Defendants to vet those counsel for 

conflicts). Under WSOU’s proposal, such counsel would have access to Defendants’ most 

sensitive material, including the source code comprising the core of Defendants’ business. Any 

counsel with a need to access that material for purposes of this litigation can simply make an 

appearance. This Court rejected this exact language when WSOU proposed it in litigation with 

ZTE. Compare C.A. No. 6:20-cv-00487-ADA, D.I. 74-1 at ¶ 5(a) with D.I. 83, at ¶ 5(a). 

WSOU cites no substantive reason for its proposal, which departs from the Court’s default 

protective order, except to say that it appeared in Defendants’ earliest proposals. WSOU fails to 

acknowledge that such language only appeared in Defendants’ early proposals as a carry-over from 

the Eastern District standard on which WSOU insisted. After WSOU failed to respond to 

 

2

 WSOU’s Exhibit B (D.I. 119-2) contains additional, silent changes that it has not called 

out, including by failing to include Defendants’ most recent proposals (e.g. infra at § III.C 

(regarding ¶ 9) and by introducing extraneous language in Paragraphs 1 and 12(n). Compare

Redline of Final Proposals as Submitted to Court on November 12, 2021 (Ex. 5) with D.I. 119-2 

at ¶¶ 1 and 12(n)). The latter unsupported proposals, both of which depart from the parties’ prior 

agreement and inject ambiguity, should be rejected. 

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Defendants’ protective order offer for four months, and this Court entered its own default order, 

Defendants adopted the default language here, which provides more clarity as explained above. 

And, as noted above, WSOU agreed to Defendants’ proposal back in June after the parties 

negotiated a compromise of the issues. 

B. Paragraph 8: Definition of “Source Code” 

The issue here is simple: what information should be protected by the highest level of 

protection in the protective order. Defendants propose that the definition of “source code” not be 

limited by the subsequent exemplary description. Although the explicitly listed items identify 

common examples of Source Code Material, the list is not exhaustive, and for Defendants—

especially VMware, which is at its core a software company—a restrictive definition of what 

information is treated as “Source Code Material” is likely to be prejudicial. Indeed, the Court’s 

default order does not define “source code” at all and furthermore includes “live data” within the 

scope of “Source Code Material.” 

WSOU proposes an unnecessarily restrictive term that would narrowly define “Source 

Code Material.” WSOU relies on its stipulated agreement with Microsoft and a mistaken 

suggestion that Defendants purportedly agreed to this language previously—Defendants did not 

agree. WSOU’s reference to Microsoft only proves Defendants’ point. In that case, this provision 

was not only agreed but also includes “live data” in the scope of “Source Code Material,” reducing 

the prejudice of any restrictive definition of “source code.” Here, Defendants’ original proposal 

stated “Source Code include[s], but [is] not limited to” the items explicitly listed there—an 

equivalent of the currently proposed “e.g.” When Defendants later proposed “i.e.” language, the 

definition included “and/or live data (that is, data as it exists residing in a database or databases),” 

as does this Court’s default standard. Defendants accordingly adopted the Court’s default order 

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after it was released, which likewise refers to “source code and/or live data.” WSOU then struck 

the reference to “live data,” creating the restrictive definition Defendants now dispute. 

In any case, if WSOU is dissatisfied with “e.g.,” Defendants are willing to adopt the Court’s 

default definition of “Source Code Material” which is “computer source code and/or live data (that 

is, data as it exists residing in a database or databases).” 

C. Paragraph 9: Access to Highly Confidential Protected Material 

WSOU apparently agrees with Defendants’ proposal regarding which categories of 

individuals may access Highly Confidential materials and appears to have raised this dispute in 

error as WSOU excluded Defendants’ most recent proposal from its redline exhibit. WSOU’s sole 

stated basis for disputing Defendants’ position is that Defendants’ proposal is allegedly missing 

language limiting access of in-house counsel to those without competitive decision-making 

authority. But Defendants proposed precisely such a provision, including in the parties’ joint 

submission to the court by email on November 12, 2021. (See Redline of Final Proposals as 

Submitted to Court on November 12, 2021 (Ex. 5) at ¶ 5(c) (including the clause “provided, 

however, that access by in-house counsel pursuant to paragraph 5(c) be limited to in-house counsel 

who exercise no competitive decision making authority on behalf of the client”).) 

However, WSOU’s proposal differs from Defendants’ in that WSOU’s proposal 

inexplicably excludes access to Highly Confidential materials for deponents who previously had 

access to those same materials or were authors and recipients of the materials—individuals 

identified in paragraphs (h) and (i), respectively. The upshot of WSOU’s proposal would be to 

preclude the use or authentication of Highly Confidential materials in depositions despite the 

witness having previously authored or received such materials. It is without question that WSOU’s 

proposal is unworkable; tellingly, WSOU provides no explanation for why the Court should 

impose this unusual restriction. 

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D. Paragraph 12(a): Number and Location of Source Code Computers 

The Parties dispute the number of source code review computers to be provided by each 

defendant: Defendants proposes one per defendant (or two total, one for Dell source code and a 

second for VMware source code), WSOU proposes two each (for a total of four). WSOU’s bare 

assertion of significant burden of working with one computer from each defendant is baseless. 

Especially since Defendants agreed to make such computers available in Austin, where WSOU’s 

identified consultants for source code reside. Defendants, on the other hand, would have to double 

the number of computers that are purchased, maintained, and loaded with licensed software for 

WSOU’s review. WSOU’s purported rush to review source code, such that it must have two 

computers at once, is a byproduct of WSOU’s minimal efforts to prosecute its case. With less than 

a month left in fact discovery, WSOU has not once requested access to source code. 

The default protective order simply states that source code shall be produced at offices of 

outside counsel. As noted above, Defendants have already gone above and beyond that 

requirement, and have agreed to produce their source code in Austin, even though at least for 

VMware the code is not normally located in Austin. If one of the already-designated locations is 

not available, the parties can work together to find a mutually agreeable location for producing the 

source code. The Court rejected WSOU’s exact proposal in WSOU v. Google (C.A. No. 6:20-

00571-585), where Google had already offered the code in Dallas. 

E. Paragraph 12(b): Source Code Analysis Tools 

Only three weeks before the close of fact discovery, WSOU now insists upon enshrining 

in the protective order the provision of certain analysis tools on Defendants’ source code 

computers, adding to the list of unnecessary disputes over the protective order. The parties already 

agreed that requests for installation of additional tools “will not be unreasonably denied.” Rather 

than actually request Defendants’ source code, which has been available for review for months, 

Case 6:20-cv-00475-ADA Document 122 Filed 11/19/21 Page 7 of 19
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WSOU now raises this provision by motion. Once WSOU makes such a request, Defendants can 

evaluate the potential ease or burden of installing these programs, and will not unreasonably 

decline to install them. But, given WSOU’s failure to prosecute its case, Defendants have not had 

occasion to evaluate the potential ease or burden to date. 

As to the number of days in advance for requesting installation of these tools, the parties 

have been in agreement on a five business day lead-time since November 2020. WSOU only 

proposed this reduced notice time this month, well after the protective order should have been on 

file. WSOU’s dilatory approach to source code review does not justify shortening the notice 

period. 

F. Paragraph 12(d): Source Code Reviewers’ Subsequent Software 

Development Activity 

Defendants’ propose that experts and consultants reviewing source code be excluded from 

commercial software development related to the reviewed material during the pendency of the 

litigation. Defendants’ proposed language is similar in purpose to a prosecution bar, but is 

intended to protect Defendants’ confidential and valuable source code—which, especially for 

VMware, is a core tenet of their business models—from being used for an improper competitive 

purpose outside of this litigation. Additionally, in prior negotiations earlier this year, WSOU 

agreed to this language. Despite having previously identified its source code reviewers, WSOU 

raises no specific prejudice they might face. 

G. Paragraph 12(e): Notice and Restrictions On Source Code Review 

Defendants’ proposal that WSOU request access to source code 14 days in advance is 

reasonable and allows Defendants to make the necessary logistical arrangements, including 

securing locations within the District and ensuring that the necessary equipment and tools are in 

place. WSOU’s proposed notice period is unduly short, and would impose a burden on Defendants 

Case 6:20-cv-00475-ADA Document 122 Filed 11/19/21 Page 8 of 19
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and the third parties who will likely host the source code review within the District. WSOU’s 

complaints of delay are, once again, problems of WSOU’s own making, as Defendants have 

communicated extensively over the last year regarding entry of an appropriate protective order and 

WSOU has been largely unresponsive. Additionally, WSOU has declined to actually request 

access to source code to date. 

As to WSOU’s proposal regarding vaccination status, there is no need to enter an order that 

may be at odds with a building’s or host entity’s business policies surrounding vaccination status. 

The parties can resolve logistical issues—if any—as they arise. 

H. Paragraph 12(f): WSOU’s Request for a Court Order Requiring Third 

Parties to Safeguard Source Code Reviewers’ Personal Electronic Devices 

Defendants will endeavor to provide secure storage for reviewers’ personal electronic 

devices on an as-needed basis, but there is no justification for imposing this obligation via Court 

order on third parties who may agree to host the source code review computers in Austin or 

elsewhere in the Western District of Texas. Indeed, such an order may dissuade third parties from 

agreeing to host. Defendants are confident that a secure storage location can be made available 

without the threat of contempt, to the extent the reviewer does not have a car where such reviewer 

could keep such equipment when visiting the review site. WSOU agreed to a protective order in 

the co-pending Cisco matter that tellingly did not include such language. See WSOU v. Cisco, 

C.A. No. 6:21-00128-ADA, D.I. 33-1 (W.D. Tex. September 23, 2021). 

I. Paragraph 12(i): General Prohibition of Copying Source Code in 

Correspondence 

Defendants’ proposal avoids unnecessary disseminating of source code by precluding it 

from inclusion in regular email correspondence between counsel. WSOU’s first edit, for which it 

provides no explanation, limits the exception for electronic copies of Source Code Material to that 

Case 6:20-cv-00475-ADA Document 122 Filed 11/19/21 Page 9 of 19
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set forth in Paragraph 12(k)3

 rather than Paragraph 12 generally. But Paragraphs 12(g) and 12(r) 

also discuss electronic copies of Source Code Material. WSOU then complains of the result of its 

first edit, saying that Defendants’ proposal (that the parties not include Source Code Material in 

correspondence) is inconsistent with Paragraph 12(g)4

, which allows for Source Code Material in 

expert reports and court documents. Not so – Paragraph 12(g) is an exception to this rule under 

Defendants’ proposal. Rejecting WSOU’s proposal resolves WSOU’s only complaint. 

J. Paragraph 12(j): Logging Use Of Printed Source Code Material 

To ensure the security of Defendants’ source code, WSOU should be required to keep a 

log of the use of the printed source code copies provided by Defendants once those copies are in 

WSOU’s care. For example, Paragraph 12(g) contemplates that excerpts of Source Code Material 

may be included if necessary in various court documents (“Source Code Exhibits”), which 

themselves may require printing, for example in the submission of Chambers copies. WSOU 

should log such copies of Source Code Material if it creates them. 

Regarding WSOU’s latter proposal that additional copies be sent to “specific 

individuals”—a category not elsewhere defined or agreed for access to sensitive Designated 

Materials—is problematic and unnecessary. WSOU is already capable of requesting additional 

copies (for provision to qualified individuals defined elsewhere) and can seek relief from the Court 

if its requests are unreasonably denied. Further, WSOU previously agreed to Defendants’ 

proposal, including the language clarifying that Paragraph 12(j) does not create an exception 

allowing additional copies beyond the limits agreed in Paragraph 12(k). 

 

3

 To clarify, it is apparent that both parties intended the language to read “paragraph 12” 

rather than “paragraph 10.” 

4

 WSOU confusingly mis-cites to paragraph “5(g)” instead of 12(g). 

Case 6:20-cv-00475-ADA Document 122 Filed 11/19/21 Page 10 of 19
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K. Paragraphs 12(k) and 12(l): Limits on Printouts of Source Code Material 

The parties dispute the number of pages of source code to be printed, the ability to create 

and save excerpts for printing, and the time in which disputes about such printouts must be 

resolved. Defendants’ proposal limiting printouts of Source Code Material to 250 pages and no 

more than 15 pages of a continuous block is adequate, and the undisputed language contemplates 

permission to print additional pages if need arises, which “shall not be unreasonably denied.” 

WSOU does not justify its broad proposal, and there is no need for WSOU’s additional proposal 

allowing reviewers to manipulate the code on a review computer for the creation of excerpts for 

printing, which introduces the possibility that the code is altered prior to printing, even if 

incidentally. With respect to Paragraph 12(l), Defendants should not be required to provide paper 

copies on a one business day turnaround, or electronic copies at all, which are forbidden by the 

remainder of the agreed provisions except under specific circumstances. It is sufficient for WSOU 

to identify the code WSOU is requesting that Defendants print. 

Defendants disagree that there needs to be a deadline for conferring in good faith at all, but 

have proposed three days as a compromise to WSOU’s proposed addition of this language. A one 

business day turnaround for conferring on a dispute is unnecessarily stringent. 

WSOU confusingly refers to this Court’s default protective order paragraph 11(k), which 

refers to the electronic transfer of Source Code Material. This disputed paragraph does not relate 

to transferring Source Code Material, only to the saving of excerpts electronically on review 

computers for printing. 

L. Paragraph 12(o): Electronic Transport of Source Code Material 

Defendants propose to limit the scope of provisions governing the transport of Source Code 

Material to those found in Paragraph 12—the only paragraph addressing Source Code in the 

protective order. Defendants’ proposed limitation prevents ambiguity as to any unintended 

Case 6:20-cv-00475-ADA Document 122 Filed 11/19/21 Page 11 of 19
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exception that may arise from language in other provisions. WSOU fails to address its proposal 

in its opening brief, and WSOU's proposal should be rejected accordingly. 

M. Paragraph 13: Acquisition Bar 

A significant aspect of WSOU’s business model involves acquiring patents to assert against 

entities that sell products. Through this litigation, WSOU’s counsel will gain access to 

Defendants’ confidential information, including source code. Defendants’ proposed acquisition 

bar marks an important protection for ensuring that Defendants’ confidential information is not 

inadvertently misused or disclosed to Defendants’ detriment, such as by facilitating acquisition of 

patents “to be asserted against Defendants” based on WSOU’s or its counsel’s knowledge of 

Defendants’ confidential information. 

WSOU fundamentally misunderstands the purpose of an acquisition bar, which, like a 

prosecution bar, is not to proscribe otherwise intentional disclosure, but to reduce the risk of 

inadvertent use or disclosure. In re Deutsche Bank Tr. Co. Americas, 605 F.3d 1373, 1379 (Fed. 

Cir. 2010). Once WSOU’s counsel learns of Defendants’ confidential information, they cannot 

un-learn it. WSOU’s lead counsel regularly represents companies in the business of acquiring 

patents, including WSOU, and previously Uniloc. There is a significant risk that WSOU’s counsel, 

in providing advice to WSOU (or other such entities focused on acquiring patents to assert against 

Defendants), inadvertently relies on Defendants’ confidential information learned through this 

litigation in providing that advice. To minimize the potential burden on WSOU or WSOU’s 

counsel, Defendants’ proposal is narrow, and limits such advice only as to acquisition of 

intellectual property that “is or will be asserted against Defendants” or the selection or valuation 

of patents or claims “to be asserted against Defendants.” 

Advising on the acquisition of patents, which is a core business function of such 

companies, goes directly to the heart of the “competitive decision-making” that In re Deutsche 

Case 6:20-cv-00475-ADA Document 122 Filed 11/19/21 Page 12 of 19
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Bank sets forth as the determining factor. 605 F.3d at 1378 (“Whether an unacceptable opportunity 

for inadvertent disclosure exists . . . should turn on the extent to which counsel is involved in 

‘competitive decisionmaking’ with its client.”) (citations omitted). In this case, an acquisition bar 

is likely even more critical than a prosecution bar. Unwired Planet LLC v. Apple Inc., C.A. No. 

3:12-cv-00505-RCJ, 2013 WL 1501489, at *3 (D. Nev. Apr. 11, 2013) (“This is the very reason 

for prosecution bars in patent cases, especially in this case where Unwired’s sole reason for 

existence is to acquire patents and sue companies[.]”). 

One of WSOU’s primary concerns with this provision is that it prohibits WSOU’s counsel 

from providing “routine advice.” That it is routine for WSOU’s counsel to advise clients on the 

acquisition of patents to be asserted against Defendants in particular only confirms the particular 

need in this case for an acquisition bar of the limited duration proposed. 

Defendants have proposed the acquisition bar language adopted by this Court in 

Multimedia Content Management LLC v. Dish Network L.L.C., C.A. No. 6:18-cv-00207-ADA 

(W.D. Tex. September 25, 2019) (“MCM”), which involved similar concerns to those here. The 

language is narrowly tailored to preclude individuals with access to Defendants’ highly 

confidential technical materials, including source code, from participating in the acquisition of 

patents to be asserted against Defendants. 

Where, as here, Defendants have shown that there is a high risk of inadvertent disclosure 

associated with acquisition activity, the burden should be on WSOU to show on a counsel-bycounsel basis why an acquisition bar should not apply. See Intell. Ventures I, LLC v. Lenovo Grp. 

Ltd., No. 16-CV-10860-PBS, 2019 WL 343242, at *3 (D. Mass. Jan. 25, 2019). WSOU makes no 

attempt to show that its counsel does not participate in competitive decision making, nor has it 

explained how this bar would deprive WSOU of the benefit of counsel of its choice, as Defendants’ 

Case 6:20-cv-00475-ADA Document 122 Filed 11/19/21 Page 13 of 19
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proposals are narrowly tailored to situations that could implicate use of Defendants’ confidential 

information to Defendants’ disadvantage outside of this litigation. WSOU’s failure to make a 

single concrete argument on this point is telling, and WSOU’s general allusion to the restriction 

of unnamed activities that “have absolutely nothing to do” with the acquisition bar should be 

ignored. 

WSOU’s other concern, that the acquisition bar would prevent WSOU’s counsel from 

advising WSOU on the sale of its patents is misplaced. Such conduct is not proscribed by 

Defendants’ proposed acquisition bar. As WSOU states, such advice would not implicate the use 

of Defendants’ confidential materials unless WSOU’s counsel directly communicates that material 

to the acquiring party in violation of other protective order provisions. WSOU unsurprisingly cites 

no case for this proposition. 

Lastly, WSOU’s suggestion that Defendants previously agreed to a protective order lacking 

an acquisition bar is simply wrong. Every single copy of the protective order that Defendants have 

proposed, from the first version it proposed more than a year ago on October 26, 2020 through the 

disputed version now before the Court, has included a proposed acquisition bar. (See Defendants’ 

November 25, 2020 Proposal (Ex. 1 at 5 and Ex. 6, ¶ 11); Defendants’ January 26, 2021 Proposal 

(Ex. 1 at 4 and Ex. 7, ¶ 11).) WSOU’s statement that “Dell agreed to a protective order that did 

not contain the acquisition bar Dell now attempts to impose” is misleading. On October 14, 2021, 

Defendants narrowed its proposed acquisition bar from one that precludes any participation in 

“acquisition activity” generally to the current proposal in hope of reaching resolution with WSOU, 

but Defendants have never proposed a protective order without an acquisition bar at all. WSOU’s 

statement that “Dell agreed to a protective order without an acquisition bar on April 15, 2021” is 

demonstrably false. (See Defendants’ April 15, 2021 Proposal (Ex. 1 at 3 and Ex. 8, ¶ 13).) 

Case 6:20-cv-00475-ADA Document 122 Filed 11/19/21 Page 14 of 19
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N. Paragraph 14: Production of Third Party Confidential Information 

Defendants propose a mechanism for handling third-party confidentiality in a manner that 

does not impose an undue burden on third parties. WSOU’s proposal that a party must notify the 

requesting Party within three business days is unnecessarily restrictive and likely moot at this late 

stage in discovery. While WSOU regularly relies on the Microsoft case for guidance throughout 

its brief, in that case, this Court rejected the exact proposed time limitation WSOU proposes here. 

WSOU’s proposal requiring a party to produce information if a third party does not 

intervene could require a party to ignore its contractual obligations and impose a harsh obligation 

the third parties, placing undue strain on the parties’ relationships with those third parties. In most 

instances, the parties will reach agreements with third parties to produce such information, as has 

been the case thus far. In the rare circumstances where necessary, the appropriate mechanism is 

for the requesting party to move to compel—a motion which the defending party may choose not 

to oppose, and which can be granted easily if the third party does not intervene at that point to 

object. 

WSOU’s hypothetical assumption that the contracts in question already allow for 

disclosure after notice is baseless. And under WSOU’s own hypothetical, if the third party 

agreement allowed for production after notice and a failure to object, then the party would already 

be contractually free to produce, mooting any need for WSOU’s proposal. 

O. Paragraph 15(c): Inadvertent Production of Privileged Material 

Defendants propose that inadvertently produced privilege material be protected against 

further use by a receiving party after it has been identified and recalled by the producing party. 

Defendants’ proposal is consistent with Federal Rule of Evidence 502(d) and is important to fully 

protecting attorney client privilege against inadvertent disclosure and in returning the parties to the 

position they would have been if disclosure had not occurred. Allowing a receiving party to retain 

Case 6:20-cv-00475-ADA Document 122 Filed 11/19/21 Page 15 of 19
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and use the contents of a privileged document in arguing against its status as privileged 

significantly undermines the protection against such inadvertent disclosure. Further, consistent 

with usual practice in such disputes, the Court may order in camera review of the materials in 

question if justified. 

P. Paragraph 16: Duty to Ensure Compliance with Protective Order 

Defendants’ propose that a receiving party who designates an individual to receive 

Designated Material “reasonably ensure” that such a person observes the terms of the protective 

order. A receiving party has significant discretion in the disclosure of Designated Material to 

persons unknown to the producing party, including mock jurors, independent litigation support 

services, and photocopy, document imaging, and database services. (See, e.g., Paragraph 5(f).) 

With that discretion should come a responsibility to reasonably ensure that such persons will 

observe the terms of this Order. It will surely not be a challenge for WSOU to act “reasonably” in 

protecting such sensitive materials. 

Q. Paragraph 19: Definition of Data Breach 

The parties dispute the definition of “data breach.” Defendants’ proposal is more specific 

and thorough than WSOU’s proposal, which only refers generically to “misuse, compromise, or 

unauthorized access,” all of which are hardly more than synonyms of “breach.” By WSOU’s own 

suggestion that the Court adopt a “clear” provision, the Court should adopt Defendants’ proposal. 

R. Paragraph 20: Notification of Data Breach 

Defendants propose that should a data breach impacting Protected Material occur, notice 

to the producing party should be “immediate[].” Contrary to WSOU’s suggestion, no serious 

interpretation of Defendants’ proposal would require a party to notify counsel of a breach prior to 

becoming aware of it. WSOU’s additional language is thus superfluous. Worse, WSOU’s 

reference to “practicability” introduces leeway in what should be viewed as an urgent situation. 

Case 6:20-cv-00475-ADA Document 122 Filed 11/19/21 Page 16 of 19
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Dated: November 19, 2021 By: /s/ Barry K. Shelton 

 Barry K. Shelton 

Texas State Bar No. 24055029 

bshelton@sheltoncoburn.com 

SHELTON COBURN LLP 

311 RR 620, Ste. 205 

Austin, TX 78734-4775 

Telephone: 512.263.2165 

Facsimile: 512.263.2166 

Benjamin Hershkowitz 

bhershkowitz@gibsondunn.com 

Brian A. Rosenthal 

brosenthal@gibsondunn.com 

Allen Kathir 

akathir@gibsondunn.com 

Kyanna Sabanoglu 

ksabanoglu@gibsondunn.com 

GIBSON, DUNN & CRUTCHER LLP 

200 Park Ave. 

NY, NY 10166-0193 

Telephone: 212.351.4000 

Facsimile: 212.351.4035 

Y. Ernest Hsin 

ehsin@gibsondunn.com 

Jaysen S. Chung 

jschung@gibsondunn.com 

GIBSON, DUNN & CRUTCHER LLP 

555 Mission St., Ste. 3000 

San Francisco, CA 94105-0921 

Telephone: 415.393.8200 

Facsimile: 415.393.8306 

Ryan K. Iwahashi 

riwahashi@gibsondunn.com 

GIBSON, DUNN & CRUTCHER LLP 

1881 Page Mill Rd. 

Palo Alto, CA 94304-1211 

Telephone: 650.849.5300 

Facsimile: 650.849.5333 

Emily M. Whitcher 

ewhitcher@gibsondunn.com 

Andrew P. Blythe 

ablythe@gibsondunn.com 

Case 6:20-cv-00475-ADA Document 122 Filed 11/19/21 Page 17 of 19
17 

Nathaniel R. Scharn 

nscharn@gibsondunn.com 

GIBSON, DUNN & CRUTCHER LLP 

3161 Michelson Drive 

Irvine, CA 92612-4412 

Telephone: 949.451.3800 

Facsimile: 949.451.4220 

Attorneys for Defendants 

Case 6:20-cv-00475-ADA Document 122 Filed 11/19/21 Page 18 of 19
CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that on the 19th day of November, 2021, I caused the following 

parties and counsel to be served by electronic means: 

Brett Aaron Mangrum, Attorney for WSOU 

brett@etheridgelaw.com 

Brian Matthew Koide, Attorney for WSOU 

brian@etheridgelaw.com

Jeffrey Huang, Attorney for WSOU 

jhuang@etheridgelaw.com 

Mark D. Siegmund, Attorney for WSOU 

mark@swclaw.com 

Craig D. Cherry, Attorney for WSOU 

craig@swclaw.com 

Justin Wayne Allen, Attorney for WSOU 

justin@swclaw.com 

Ryan Scott Loveless, Attorney for WSOU 

ryan@etheridgelaw.com

Travis Lee Richins, Attorney for WSOU 

travis@etheridgelaw.com 

James L. Etheridge, Attorney for WSOU 

jim@etheridgelaw.com 

/s/ Barry K. Shelton 

Barry K. Shelton 

Case 6:20-cv-00475-ADA Document 122 Filed 11/19/21 Page 19 of 19