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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

THE RESEARCH FOUNDATION FOR 

THE STATE UNIVERSITY OF NEW 

YORK et al.,

 Plaintiffs,

v.

SAMSUNG ELECTRONICS CO., LTD. 

et al.,

 Defendants.

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CIVIL ACTION NO. 2:23-cv-141-RWS-RSP

PROTECTIVE ORDER

WHEREAS, Plaintiffs The Research Foundation for the State University of New York, 

University of Connecticut, and Worcester Polytechnic Institute (“Plaintiffs”) and Defendants 

Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., and Samsung Semiconductor, 

Inc. (“Defendants”), hereafter referred to as “the Parties,” believe that certain information that is or 

will be encompassed by discovery demands by the Parties involves the production or disclosure 

of trade secrets, confidential business information, or other proprietary information;

WHEREAS,thePartiesseek a protective orderlimiting disclosure thereofin accordancewith 

Federal Rule of Civil Procedure 26(c):

THEREFORE, it is hereby stipulated among the Parties and ORDERED that:

1. Each Party may designate as confidential for protection under this Order, in whole or in part, 

any document, information or material that constitutes or includes, in whole or in part, 

confidential or proprietary information or trade secrets of the Party or a Third Party to whom 

the Party reasonably believes it owes an obligation of confidentiality with respect to such

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document, information or material (“Protected Material”). Protected Material shall be 

designated by the Party producing it by affixing a legend or stamp on such document, 

information or material as follows: “CONFIDENTIAL,” “RESTRICTED –

ATTORNEYS’ EYES ONLY,” or “RESTRICTED CONFIDENTIAL SOURCE CODE.”

The designation shall be placed clearly on each page of the Protected Material (except 

deposition and hearing transcripts) for which such protection is sought. For deposition and 

hearing transcripts, the designation shall be placed on the cover page of the transcript (if 

not already present on the cover page of the transcript when received from the court 

reporter) by each attorney receiving a copy of the transcript after that attorney receives 

notice of the designation of some or all of that transcript under this Order.

2. Any document produced under Patent Rules 2-2, 3-2, and/or 3-4 before issuance of this 

Order with the designation “Confidential” or “Confidential - Outside Attorneys’ Eyes Only” 

shall receive the same treatment as if designated “RESTRICTED - ATTORNEYS’ EYES 

ONLY” under this Order, unless and untilsuch document isredesignated to have a different 

classification under this Order.

3. With respect to documents, information or material designated “CONFIDENTIAL, 

“RESTRICTED - ATTORNEYS’ EYES ONLY,” or “RESTRICTED CONFIDENTIAL 

SOURCE CODE” (“DESIGNATED MATERIAL”),1 subject to the provisions herein and 

unless otherwise stated, this Order governs, without limitation: (a) all documents, 

electronically stored information, and/or things as defined by the Federal Rules of Civil

1 The term DESIGNATED MATERIAL is used throughout this Protective Order to refer 

to the class of materials designated as “CONFIDENTIAL,” “RESTRICTED - ATTORNEYS’ 

EYES ONLY,” or “RESTRICTED CONFIDENTIAL SOURCE CODE,” both individually and 

collectively.

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Procedure; (b) all pretrial, hearing or deposition testimony, or documents marked as exhibits 

or for identification in depositions and hearings; (c) pretrial pleadings, exhibits to pleadings 

and other court filings; (d) affidavits; (e) stipulations, and (f) expert reports. All copies, 

reproductions, extracts, digests and complete or partial summaries prepared from any 

DESIGNATED MATERIALS shall also be considered DESIGNATED MATERIAL and 

treated as such under this Order.

4. A designation of Protected Material (i.e., “CONFIDENTIAL,” “RESTRICTED -

ATTORNEYS’ EYES ONLY,” or “RESTRICTED CONFIDENTIAL SOURCE CODE”) 

may be made at any time. Inadvertent or unintentional production of documents, 

information or material that has not been designated as DESIGNATED MATERIAL shall 

not be deemed a waiver in whole or in part of a claim for confidential treatment. Any party 

that inadvertently or unintentionally produces Protected Material without designating it as 

DESIGNATEDMATERIALmay request destruction ofthatProtectedMaterial by notifying 

the recipient(s), as soon as reasonably possible after the producing Party becomes aware of 

the inadvertent or unintentional disclosure, and providing replacement Protected Material 

that is properly designated. The recipient(s)shall then destroy all copies of the inadvertently 

or unintentionally produced Protected Materials and any documents, information ormaterial 

derived from or based thereon.

5. “CONFIDENTIAL” documents, information and material may be disclosed only to the 

following persons, except upon receipt of the prior written consent of the designating party, 

upon order of the Court, or as set forth in paragraph 15 herein:

(a) outside counsel of record in this Action for the Parties;

(b) employees of such counsel assigned to and reasonably necessary to assist such 

counsel in the litigation of this Action;

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(c) in-house counsel for the Parties who either have responsibility for making decisions 

dealing directly with the litigation of this Action, or who are assisting outside 

counsel in the litigation of this Action and reasonably necessary to assist such 

counsel in the litigation of this Action;

(d) up to and including three (3) designated representatives of each of the Parties to the 

extent reasonably necessary for the litigation of this Action, except that either party 

may in good faith request the other party’s consent to designate one or more 

additional representatives, the other party shall not unreasonably withhold such 

consent, and the requesting party may seek leave of Court to designate such 

additional representative(s) if the requesting party believes the other party has 

unreasonably withheld such consent;

(e) outside consultants or experts (i.e., not existing employees or affiliates of a Party or 

an affiliate of a Party) retained for the purpose of this litigation, provided that: (1) 

such consultants or experts are not presently employed by the Parties hereto for 

purposes other than this Action (not including outside consultants or experts who 

have also been retained by the same Party for another Action); (2) before access is 

given, the consultant or expert has completed the Undertaking attached as 

Appendix A hereto and the same is served upon the producing Party with a current 

curriculum vitae of the consultant or expert, along with a list of all other cases in or 

for which, during the previous four (4) years, the consultant or expert testified 

(including, but not limited to, written testimony, deposition testimony, and live 

trial testimony), at least seven (7) days before access to the Protected Material is 

to be given to that consultant or Undertaking to object to and notify the receiving 

Party in writing that it objects to disclosure of Protected Material to the consultant 

or expert. The Parties agree to promptly confer and use good faith to resolve any 

such objection. If the Parties are unable to resolve any objection, the objecting 

Party may file a motion with the Court within fifteen (15) days of the notice, or 

within such other time as the Parties may agree, seeking a protective order with 

respect to the proposed disclosure. The objecting Party shall have the burden of 

proving the need for a protective order. No disclosure shall occur until all such 

objections are resolved by agreement or Court order;

(f) independent litigation support services, including persons working for or as court 

reporters, graphics or design services, jury or trial consulting services (including 

mock jurors who have agreed in writing to not disclose confidential information), 

and photocopy, document imaging, and database services retained by counsel and 

reasonably necessary to assist counsel with the litigation of this Action; and

(g) the Court and its personnel.

6. A Party shall designate documents, information or material as “CONFIDENTIAL” only 

upon a good faith belief that the documents, information or material contains confidential

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or proprietary information or trade secrets of the Party or a Third Party to whom the Party 

reasonably believesit owes an obligation of confidentiality with respect to such documents, 

information or material. For the avoidance of doubt, documents, information, or material 

for which there is no obligation of confidentiality and is known to be publicly available 

will not be designated “CONFIDENTIAL.”

7. Documents, information or material produced pursuant to any discovery request or 

Order in this Action, including but not limited to Protected Material designated as 

DESIGNATED MATERIAL, shall be used by the Parties only in the litigation of this 

Action and shall not be used for any other purpose. Any person or entity who obtains access 

to DESIGNATED MATERIAL or the contents thereof pursuant to this Order shall not 

make any copies, duplicates, extracts, summaries or descriptions of such DESIGNATED 

MATERIAL or any portion thereof except as may be reasonably necessary in the litigation 

of this Action. Any such copies, duplicates, extracts, summaries or descriptions shall be 

classified DESIGNATED MATERIALS and subject to all of the terms and conditions of 

this Order.

8. To the extent a producing Party believes that certain Protected Material qualifying to be 

designated CONFIDENTIAL is so sensitive that its dissemination deserves even further 

limitation, the producing Party may designate such Protected Material “RESTRICTED --

ATTORNEYS’ EYES ONLY,” or to the extent such Protected Material includes computer 

source code (including comments contained therein) and/or live data (that is, data as it 

exists residing in a database or databases) (“Source Code Material”), the producing Party 

may designate such Protected Material as “RESTRICTED CONFIDENTIAL SOURCE 

CODE.”

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9. A Party shall designate documents, information or material as “RESTRICTED –

ATTORNEYS’ EYES ONLY” under this order only upon a good faith belief that the 

documents, information or material contains confidential or proprietary information or 

trade secrets of the Party or a Third Party to whom the Party reasonably believes it owes 

an obligation of confidentiality with respect to such documents, information or material.

10. For Protected Material designated RESTRICTED -- ATTORNEYS’ EYES ONLY, access 

to, and disclosure of, such Protected Material shall be limited to individuals listed in 

paragraphs 5(a-c) and (e-g).

11. Plaintiffs anticipate that some Protected Material may contain information subject to the 

Federal Educational Rights and Privacy Act (“FERPA”). To the extent such Protected 

Material is subject to production, it shall be designated “RESTRICTED – ATTORNEYS’ 

EYES ONLY.” Personally identifiable identifying information within this Protected 

Material may be redacted to the extent that this Protected Material involves FERPA privacy 

protections. The parties shall meet and confer regarding redactions that implicate FERPA 

privacy protections beyond personally identifiable identifying information.

12. For Protected Material designated RESTRICTED CONFIDENTIAL SOURCE CODE, 

the following additional restrictions apply:

(a) Access to a Party’s Source Code Material shall be provided only on three (3) 

password-protected “stand-alone” computer(s) (that is, the computer may not be 

linked to any network, including a local area network (“LAN”), an intranet or the 

Internet and on which all access ports have been disabled (except for one printer 

port) (“Source Code Computer”)). Additionally, except as provided in paragraph 

10(p) below, the Source Code Computer(s) may only be located in a secured room 

(“Source Code Review Room”) at the offices of the producing Party’s outside 

counsel;

(b) The receiving Party shall make reasonable efforts to restrict its requests for such 

access to the Source Code Computer(s) to normal business hours, which for 

purposes of this paragraph shall be 8:00 a.m. through 6:00 p.m. However, upon

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reasonable notice from the receiving party, the producing Party shall make 

reasonable efforts to accommodate the receiving Party’s request for access to the 

Source Code Computer(s) outside of normal business hours. The Parties agree to 

cooperate in good faith such that maintaining the producing Party’s Source Code 

Material at the offices of its outside counsel shall not unreasonably hinder the 

receiving Party’s ability to efficiently and effectively conduct the prosecution or 

defense of this Action;

(c) The producing Party shall provide the receiving Party with information explaining 

how to start, log on to, and operate the Source Code Computer(s) in order to access 

the produced Source Code Material on the Source Code Computer(s);

(d) The producing Party will produce Source Code Material in computer searchable 

format on the Source Code Computer(s) as described above. Prior to the receiving 

Party’s initial review, the producing Party shall install Notepad++. In the event the 

receiving Party needs other commercially available software tools for viewing and 

searching Source Code to be installed on the standalone computer, the receiving 

Party must identify those tools and either provide the producing Party with licensed 

copies of the software tool(s), or identify how to access and activate licensed 

copies, at the receiving Party’s expense, at least ten (10) business days in advance 

of the scheduled review to allow the producing Party an opportunity to review and 

inspect the software tool(s). The producing Party and receiving Party shall 

promptly meet and confer in good faith to resolve any disputes regarding the 

configuration of the Source Code Computer(s), including whether to install the 

requested software tools;

(e) No recordable media, recordable devices, or duplicating machines, including 

without limitation: sound recorders, computers, cellular telephones, peripheral 

equipment, cameras, CDs, DVDs, scanners, printers, photocopiers, or drives of any 

kind, shall be permitted into the Source Code Review Room absent agreement of 

the producing Party. The producing Party shall make available a reasonably secure 

area (such as the reception desk area or a breakout room if one is available) where 

such devices and other belongings may be stored but the receiving Party is 

responsible at all times for their own items;

(f) The receiving Party’s outside counsel and/or experts shall be entitled to take notes 

relating to the Source Code Material but may not copy substantial portions of the 

Source Code into the notes and may not take such notes electronically on the 

Source Code Computer itself or any other computer. For purposes of this provision, 

fifteen (15) or more continuous lines of code or one hundred and fifty (150) total 

lines of code are “substantial”;

(g) The producing Party may visually monitor the activities of the receiving Party’s 

representatives during any source code review, but only to ensure that no 

unauthorized electronic records of the Source Code Material and no information

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concerning the Source Code Material are being created or transmitted in any way. 

Other than the visual monitoring described above, the producing Party may not 

monitor or record via any electronic or any other means the activities of the 

receiving Party’s representatives during any source code review;

(h) All persons who will review a producing Party’s Source Code Material on the 

Source Code Computer on behalf of a receiving Party, including members of a 

receiving Party’s outside law firm, shall be identified in writing to the producing 

Party at least seven (7) days in advance of the first time that such person reviews 

Source Code Material on the Source Code Computer. Such identification shall be 

in addition to any other disclosure required under this Order. Additionally, all 

persons viewing Source Code Material on the Source Code Computer shall sign 

on each day they view Source Code Material a log that will include the names of 

persons who view the Source Code Material on the Source Code Computer and 

when they enter and depart the Source Code Review Room. Proper identification 

of all authorized persons shall be provided prior to any access to the Source Code 

Review Room or the Source Code Computer. Proper identification requires 

showing, at a minimum, a photo identification card sanctioned by the government 

of any State of the United States, by the government of the United States, or by the 

nation state of the authorized person’s current citizenship. Access to the Source 

Code Review Room or the Source Code Computer may be denied, at the discretion 

of the producing Party, to any individual who fails to provide proper identification;

(i) Access to Protected Material designated RESTRICTED CONFIDENTIAL -

SOURCE CODE shall be limited to outside counsel and up to three (3) outside 

consultants or experts2 (i.e., not existing employees or affiliates of a Party or an 

affiliate of a Party) retained for the purpose of this litigation and approved to access 

such Protected Materials pursuant to paragraph 5(e) above. A receiving Party may 

include excerpts of Source Code Material in a pleading, exhibit, expert report, 

discovery document, deposition transcript, other Court document (“Source Code 

Documents”), provided that the Source Code Documents are appropriately marked 

under this Order, restricted to those who are entitled to have access to them as 

specified herein, and, if filed with the Court, filed under seal in accordance with 

the Court’s rules, procedures and orders;

(j) To the extent portions of Source Code Material are quoted in a Source Code 

Document, either (1) the entire Source Code Document will be stamped and treated 

asRESTRICTEDCONFIDENTIALSOURCECODEor(2)those pages containing 

quoted Source Code Material will be separately stamped and treated as 

RESTRICTED CONFIDENTIAL SOURCE CODE;

2 For the purposes of this paragraph, an outside consultant or expert is defined to include 

the outside consultant’s or expert’s direct reports and other support personnel, such that the 

disclosure to a consultant or expert who employs others within his or her firm to help in his or her 

analysis shall count as a disclosure to a single consultant or expert.

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(k) Except as set forth in paragraph 10(p) below, no electronic copies of Source Code 

Material shall be made without prior written consent of the producing Party, except 

as necessary to create documents which, pursuant to the Court’s rules, procedures 

and order, must be filed or served electronically;

(l) The receiving Party shall be permitted to have printed by the producing Party a 

reasonable number of printouts of Source Code Material and up to six (6) extra 

photocopy sets of the printed Source Code Material, reasonably necessary for the 

preparation of its case including court filings, pleadings, expert reports, or other 

papers for deposition or trial. In considering what is reasonable, the receiving Party 

shall not, in general, ask for more than 400 total pages or 20 continuous pages of 

Source Code Material—with a page being one that has at least 35 lines of source 

code—of Source Code Material to be printed from the producing Party. After the 

receiving Party has asked that more than 400 total pages of Source Code Material 

of any version be printed, the Parties shall meet and confer regarding the printing 

of additional pages, if any, in view of the needs of the case. The parties, however, 

must meet and confer in good faith and may not unreasonably raise or deny 

reasonable requests for improper purposes, such as tactical advantage or undue 

delay. If the producing Party objects that the printed portions are not reasonably 

necessary to any case preparation activity, the producing Party shall make such 

objections known to the receiving Party within five (5) business days of receipt of 

a request for additional printouts. If after meeting and conferring, the Parties cannot 

resolve the objection, either Party may seek an order from the Court. Contested 

source code printouts need not be produced to the requesting Party until the matter 

is resolved by the Court. The receiving Party shall not request paper copies for the 

purposes of reviewing the source code in the first instance. Within 5 business days 

or such additional time as necessary due to the volume requested, the producing 

Party will provide the requested material on watermarked or colored paper bearing 

Bates numbers and the legend “RESTRICTED CONFIDENTIAL SOURCE 

CODE” unless objected to as discussed above. The printouts and photocopies are 

subject to the same protections set forth herein;

(m) Should such printouts or photocopies be transferred back to electronic media, such 

media shall be labeled “RESTRICTED CONFIDENTIAL SOURCE CODE” and 

shall continue to be treated as such;

(n) For depositions, copies of Source Code Material that are marked as deposition 

exhibits shall not be provided to the Court Reporter or attached to deposition 

transcripts, rather, the deposition record will identify the exhibit by its production 

numbers. All paper copies of Source Code Material brought to a deposition by the 

receiving Party shall be securely retained by the receiving Party's outside counsel 

or turned over to the producing Party's outside counsel immediately following the 

close of the deposition for secure destruction in a timely manner;

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(o) If the receiving Party’s outside counsel, consultants, or experts obtain printouts or 

photocopies of Source Code Material, the receiving Party shall ensure that such 

outside counsel, consultants, or experts keep the printouts or photocopies in a 

secured locked area in the offices of such outside counsel, consultants, or expert. 

The receiving Partymay also temporarily keep the printouts or photocopies at:(i)the 

Court for any proceedings(s) relating to the Source Code Material, for the dates 

associated with the proceeding(s); (ii) the sites where any deposition(s) relating to 

the Source Code Material are taken, for the dates associated with the deposition(s); 

and (iii) any intermediate location reasonably necessary to transport the printouts or 

photocopies (e.g., a hotel prior to a Court proceeding or deposition);

(p) A producing Party’s SourceCode Material may only be transported by the receiving 

Party at the direction of a person authorized under paragraph 10(i) above to another 

person authorized under paragraph 10(i) above, on paper or password-protected 

removable electronic media (e.g., a DVD, CD-ROM, or flash memory “stick”) via 

hand carry, Federal Express or other similarly reliable courier. Source Code 

Material may not be transported or transmitted electronically over a network of 

any kind, including a LAN, an intranet, or the Internet. Source Code Material may 

only be transported electronically for the purpose of Court proceeding(s) or 

deposition(s) as set forth in paragraph 10(o) above and is at all times subject to the 

transport restrictionsset forth herein. But, for those purposes only, the Source Code 

Materials may be loaded onto a Source Code Computer;

(q) The receiving Party’s outside counsel shall maintain a log of who has custody of 

the source code other than outside counsel. The log shall identify: (1) the custodian 

of each printout or photocopy of any Source Code Material and (2) the date and 

time any custodian receives custody of and returns custody of the Source Code 

Material to outside counsel. Upon request by the producing Party, the receiving 

Party shall provide reasonable assurances and/or descriptions of the security 

measures employed by the receiving Party and/or person that receives a copy of 

any portion of the source code. Within thirty (30) calendar days after the issuance 

of a final, non-appealable decision resolving all issues in the case, the receiving 

Party must serve upon the producing Party the log and, either securely deliver to 

the producing Party or certify the destruction of, all copies of the producing Party’s 

Source Code Material; and

(r) No other copying or transcribing of Source Code Material is allowed beyond that 

described in this Protective Order. No person shall copy, e-mail, transmit, upload, 

download, print, photograph or otherwise duplicate any portion of the Source Code 

Material, unless explicitly permitted by this Protective Order.

13. Absent written consent of the producing Party, any attorney representing a Party, whether 

in-house or outside counsel, and any person associated with a Party and permitted to

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receive the other Party’s Protected Material that is designated RESTRICTED --

ATTORNEYS’ EYES ONLY and/or RESTRICTED CONFIDENTIAL SOURCE CODE

(collectively “HIGHLY SENSITIVE MATERIAL”), who obtains, receives, has access to, 

or otherwise learns, in whole or in part, the other Party’s HIGHLY SENSITIVE 

MATERIAL under this Order shall not prepare, prosecute, supervise, or assist in the 

preparation or prosecution of any patent application pertaining to the field of the invention 

of the patents-in-suit on behalf of the receiving Party or its acquirer,successor, predecessor, 

or other affiliate during the pendency of this Action and for 1.5 years after its conclusion, 

including any appeals. To ensure compliance with the purpose of this provision, each Party 

shall create an “Ethical Wall” between those persons with access to HIGHLY SENSITIVE 

MATERIAL and any individuals who, on behalf of the Party or its acquirer, successor, 

predecessor, or other affiliate, prepare, prosecute, supervise or assist in the preparation or 

prosecution of any patent application pertaining to the field of invention of the patent-insuit. For purposes of this paragraph, “prosecution” does not include participating or 

assisting in challenging or defending the patents-in-suit before a domestic or foreign 

agency (including, but not limited to, a nullity action, a reissue protest, ex parte 

reexamination, inter partes reexamination, inter partes review, post-grant review, or 

covered business method review), provided that such participation or assistance shall not, 

directly or indirectly, include suggesting, proposing for substitution, drafting, or amending 

patent claim language or advising or counseling clients regarding the same. This 

Prosecution Bar shall begin when HIGHLY SENSITIVE MATERIAL is first received by 

the affected individual.

14. Any attorney representing a Party, whether in-house or outside counsel, and any person

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associated with a Party and permitted to receive the other Party’s DESIGNATED 

MATERIAL shall not enter any information from a producing Party’s DESIGNATED 

MATERIAL into publicly accessible machine translation services (like Google Translate) 

that may result in the information becoming available to unauthorized parties, provided, 

however, a receiving Party shall be permitted to engage reputable professional vendors 

(including translation vendors) to translate information from a producing Party’s 

DESIGNATED MATERIAL with the understanding that such professional vendors may 

use secure machine translation tools (i.e., offline proprietary software that runs locally on 

the vendor’s computers or proprietary software that utilizes private cloud-based 

technology) that immediately delete all data after completing the translation as part of the 

translation process. For the avoidance of doubt, the deletion of data applies to the secure 

machine translation tools and any intermediate data created as part of the translation 

process. The receiving Party hiring such professional vendors is responsible for reporting 

any breaches or loss of the producing Party’s data by the professional vendors to the 

producing Party immediately upon becoming aware of the breach or loss of data, and the 

receiving Party shall use reasonable efforts to remediate the breach or loss of data as soon 

as possible. Upon a producing Party’s request, the receiving Party shall certify in writing 

that it has instructed all of its outside counsel and their staff, experts, contractors, 

professional vendors, and consultants of this provision. Before access to a producing 

Party’s DESIGNATED MATERIAL is given to a professional vendor that uses machine 

translation tools, the professional vendor must be advised by the receiving Party of the 

terms of this Protective Order (including this paragraph), be informed that the professional 

vendor is subject to the terms and conditions of this Protective Order.

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15. Nothing in this Order shall require production of documents, information or other material 

that a Party contends is protected from disclosure by the attorney-client privilege, the work 

product doctrine, or other privilege, doctrine, or immunity. If documents, information or 

other materialsubject to a claim of attorney-client privilege, work product doctrine, or other 

privilege, doctrine, or immunity is inadvertently or unintentionally produced, such 

production shall in no way prejudice or otherwise constitute a waiver of, or estoppel as to, 

any such privilege, doctrine, or immunity. Any Party that inadvertently or unintentionally 

producesdocuments,informationorothermaterialitreasonablybelieves areprotectedunder 

the attorney-client privilege,work product doctrine, or other privilege, doctrine, orimmunity 

may obtain the return of such documents, information or other material by promptly 

notifying the recipient(s) and providing a privilege log for the inadvertently or 

unintentionally produced documents, information or other material. The recipient(s) shall 

gather and return all copies of such documents, information or other material to the 

producingParty, exceptfor any pages containing privileged or otherwise protectedmarkings 

by the recipient(s), which pages shall instead be destroyed and certified as such to the 

producing Party, within five (5) business days of the Producing Party’s request to return 

or destroy such inadvertently produced materials. No one shall use the fact that 

circumstances of production of the information in this action to argue that any privilege or 

protection has been waived.

16. There shall be no disclosure of any DESIGNATED MATERIAL by any person authorized

to have access thereto to any person who is not authorized for such access under this Order. 

The Parties are hereby ORDERED to safeguard all such documents, information and 

material to protect against disclosure to any unauthorized persons or entities.

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17. Nothing contained herein shall be construed to prejudice any Party’s right to use any 

DESIGNATED MATERIAL in taking testimony at any deposition or hearing provided that 

the DESIGNATED MATERIAL is only disclosed to a person(s) who is: (i) eligible to have 

access to the DESIGNATED MATERIAL by virtue of his or her employment with the 

designating party,(ii)identified in theDESIGNATEDMATERIALas an author, addressee, 

or copy recipient of such information, (iii) although not identified as an author, addressee, 

or copy recipient of such DESIGNATED MATERIAL, has, in the ordinary course of 

business, seen, such DESIGNATED MATERIAL, (iv) a current or former officer, director 

or employee of the producing Party or a current or former officer, director or employee of 

a company affiliated with the producing Party, including any witness designated as a 

30(b)(6) representative of the producing Party; (v) counsel for a Party, including outside 

counsel and in-house counsel (subject to paragraphs 9 and 10 of this Order); (vi) an 

independent contractor, consultant, and/or expert retained for the purpose of this 

litigation; (vii) court reporters and videographers; (viii) the Court; or (ix) other persons 

entitled hereunder to accessto DESIGNATED MATERIAL. DESIGNATED MATERIAL 

shall not be disclosed to any other persons unless prior authorization is obtained from 

counsel representing the producing Party or from the Court.

18. Parties may, at the deposition or hearing or within thirty (30) days after receipt of a 

deposition or hearing transcript, designate the deposition or hearing transcript or any portion 

thereof as “CONFIDENTIAL,” “RESTRICTED - ATTORNEY’ EYES ONLY,” or 

“RESTRICTED CONFIDENTIAL SOURCE CODE” pursuant to this Order. Accessto the 

deposition or hearing transcript so designated shall be limited in accordance with the terms 

of this Order. Until expiration of the 30-day period, the entire deposition or hearing

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transcript shall be treated as RESTRICTED - ATTORNEY’ EYESONLY.

19. Any DESIGNATED MATERIAL that is filed with the Court shall be filed under seal and 

shall remain underseal until further order of the Court. The filing party shall be responsible 

for informing the Clerk of the Court that the filing should be sealed and for placing the 

legend “FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER” above the 

caption and conspicuously on each page of the filing. Exhibits to a filing shall conform to 

the labeling requirements set forth in this Order. If a pretrial pleading filed with the Court, 

or an exhibit thereto, discloses or relies on confidential documents, information or material, 

such confidential portions shall be redacted to the extent necessary and the pleading or 

exhibit filed publicly with the Court.

20. The Order applies to pretrial discovery. Nothing in this Order shall be deemed to prevent 

the Parties from introducing any DESIGNATED MATERIAL into evidence at the trial of 

this Action, or from using any information contained in DESIGNATED MATERIAL at 

the trial of this Action, subject to any pretrial order issued by this Court.

21. A Party may request in writing to the other Party that the designation given to any 

DESIGNATED MATERIAL be modified or withdrawn. If the designating Party does not 

agree to redesignation within ten (10) days of receipt of the written request, the requesting 

Party may apply to the Court for relief. Upon any such application to the Court, the burden 

shall be on the designating Party to show why its classification is proper. Such application 

shall be treated procedurally as a motion to compel pursuant to Federal Rules of Civil 

Procedure 37, subject to the Rule’s provisions relating to sanctions. In making such 

application, the requirements of the Federal Rules of Civil Procedure and the Local Rules 

of the Court shall be met. Pending the Court’s determination of the application, the

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designation of the designating Party shall be maintained.

22. Each outside consultant or expert to whom DESIGNATED MATERIAL is disclosed in 

accordance with the terms of this Order shall be advised by counsel of the terms of this 

Order, shall be informed that he or she is subject to the terms and conditions of this Order, 

and shall sign an acknowledgment that he or she has received a copy of, has read, and has 

agreed to be bound by this Order. A copy of the acknowledgment form is attached as 

Appendix A.

23. To the extent that any discovery is taken of persons who are not Parties to this Action 

(“Third Parties”) and in the event that such Third Parties contended the discovery sought 

involves trade secrets, confidential business information, or other proprietary information, 

then such Third Parties may agree to be bound by this Order.

24. To the extent that discovery or testimony is taken of Third Parties, the Third Parties may 

designate as “CONFIDENTIAL,” “RESTRICTED -- ATTORNEYS’ EYES ONLY,” or 

“RESTRICTED CONFIDENTIAL SOURCE CODE” any documents, information or 

other material, in whole or in part, produced or given by such Third Parties. The Third 

Parties shall have ten (10) days after production of such documents, information or other 

materials to make such a designation. Until that time period lapses or until such a 

designation has been made, whichever occurs sooner, all documents, information or other 

material so produced or given shall be treated as “RESTRICTED -- ATTORNEYS’ EYES 

ONLY” in accordance with thisOrder.

25. The provisions of this Order shall continue to be binding after final termination of this 

case until a Producing Party agrees otherwise in writing or a court order otherwise directs. 

Within sixty (60) days of final termination of this Action, including any appeals, all

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DESIGNATED MATERIAL, including all copies, duplicates, abstracts, indexes, 

summaries, descriptions, and excerpts or extracts thereof (excluding excerpts or extracts 

incorporated into any privileged memoranda of the Parties and materials which have been 

admitted into evidence in this Action), shall at the producing Party’s election either be 

returned to the producing Party or be destroyed. The receiving Party shall verify the return 

or destruction by affidavit furnished to the producing Party, upon the producing Party’s 

request. Notwithstanding the foregoing, outside counsel of record shall be entitled to 

maintain one copy of the following for archival purposes only, irrespective of whether or 

not the Protected Material was designated RESTRICTED – ATTORNEYS’ EYES ONLY: 

all pleadings, expert reports, motions and trial briefs (including all supporting and 

opposing papers and exhibits thereto), written discovery requests and responses (and 

exhibits thereto), deposition transcripts (and exhibits thereto), trial transcripts and hearing 

transcripts, and exhibits offered or introduced into evidence at any hearing or trial, emails 

and their attachments, and their attorney work product which refers or is related to any 

Protected Material. Any such archived copy that contains or constitutes Protected Material 

remain subject to this Order and shall be maintained in confidence by outside counsel for 

the Party retaining the materials. In the instance of Protected Material designated 

RESTRICTED CONFIDENTIAL SOURCE CODE, the foregoing shall not apply, and no 

Source Code shall be retained under any circumstances absent written consent from the 

Producing Party. This provision does not apply to the Court, including court personnel and 

the Court’s reporter. Any destruction obligations under this Protective Order shall not 

apply to electronically stored information in archival form stored on backup tapes or 

computer servers that are created only for disaster recovery purposes, provided that such

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18

electronic archives are not used as reference materials for a receiving Party’s business 

operations.

26. The failure to designate documents, information or material in accordance with this Order 

and the failure to object to a designation at a given time shall not preclude the filing of a 

motion at a later date seeking to impose such designation or challenging the propriety 

thereof. The entry of this Order and/or the production of documents, information and 

material hereunder shall in no way constitute a waiver of any objection to the furnishing 

thereof, all such objections being hereby preserved.

27. Any Party knowing or believing that any other party is in violation of or intends to violate 

this Order and has raised the question of violation or potential violation with the opposing 

party and has been unable to resolve the matter by agreement may move the Court for such 

relief as may be appropriate in the circumstances. Pending disposition of the motion by the 

Court, the Party alleged to be in violation of or intending to violate this Order shall 

discontinue the performance of and/or shall not undertake the further performance of any 

action alleged to constitute a violation of this Order.

28. Production of DESIGNATED MATERIAL by each of the Parties shall not be deemed a 

publication of the documents, information and material (or the contents thereof) produced 

so asto void or make voidable whatever claim the Parties may have asto the proprietary and 

confidential nature of the documents, information or other material or its contents.

29. Nothing in this Order shall be construed to effect an abrogation, waiver or limitation of any 

kind on the rights of each of the Parties to assert any applicable discovery or trial privilege.

30. Each of the Partiesshall also retain the right to file a motion with the Court (a) to modify this 

Order to allow disclosure of DESIGNATED MATERIAL to additional persons or entities

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if reasonably necessary to prepare and present this Action and (b) to apply for additional 

protection of DESIGNATED MATERIAL.

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1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

THE RESEARCH FOUNDATION FOR 

THE STATE UNIVERSITY OF NEW 

YORK et al.,

 Plaintiffs,

v.

SAMSUNG ELECTRONICS CO., LTD. 

et al.,

 Defendants.

§

§

§

§

§

§

§

§

§

§

§

§

CIVIL ACTION NO. 2:23-cv-141-RWS-RSP

APPENDIX A

UNDERTAKING OF EXPERTS OR CONSULTANTS REGARDING 

PROTECTIVE ORDER

I, , declare that:

1. My address is .

My current employer is . 

My current occupation is .

2. I have received a copy of the Protective Order in this action. I have carefully read and 

understand the provisions of the Protective Order.

3. I will comply with all of the provisions of the Protective Order. I will hold in confidence, 

will not disclose to anyone not qualified under the Protective Order, and will use only for 

purposes of this action any information designated as “CONFIDENTIAL,” 

“RESTRICTED -- ATTORNEYS’ EYES ONLY,” or “RESTRICTED CONFIDENTIAL 

SOURCE CODE” that is disclosed to me.

4. Promptly upon termination of these actions, I will return all documents and things

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2

designated as “CONFIDENTIAL,” “RESTRICTED -- ATTORNEYS’ EYES ONLY,”

or “RESTRICTED CONFIDENTIAL SOURCE CODE” that came into my possession, 

and all documents and things that I have prepared relating thereto, to the outside counsel 

for the party by whom I am employed.

5. I hereby submit to the jurisdiction of this Court for the purpose of enforcement of the 

Protective Order in this action.

I declare under penalty of perjury that the foregoing is true and correct.

Signature

Date

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