Exhibit A

Case 4:23-cv-00753-SDJ Document 11-1 Filed 12/08/23 Page 1 of 14 PageID #: 346
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

CHIEN-MIN SUNG,

Plaintiff,

v.

TEXAS INSTRUMENTS 

INCORPORATED

Defendant.

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Civil Action No.: 4:23-cv-00753

JURY TRIAL DEMANDED

[PROPOSED] PROTECTIVE ORDER

WHEREAS, Plaintiff Chien-Min Sung and Defendant Texas Instruments Incorporated, 

hereafter referred to as “the Parties,” believe that certain information that is or will be encompassed 

by the Parties’ discovery demands 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 

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 –

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

The designation “CONFIDENTIAL,” “RESTRICTED – ATTORNEYS’ EYES ONLY,” 

or “RESTRICTED CONFIDENTIAL SOURCE CODE,” as applicable, shall be placed

clearly on each page ofthe ProtectedMaterial(except deposition and hearing transcripts) for

which such protection is sought. For deposition and hearing transcripts, the designation

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

“RESTRICTED CONFIDENTIAL SOURCE CODE,” as applicable, 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.

2. 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 

Procedure; (b) all discovery responses, (c) all pretrial, hearing or deposition testimony, or

documents marked as exhibits or for identification in depositions and hearings; (d) pretrial

pleadings, exhibits to pleadings and other court filings; (e) affidavits, declarations, and 

expert reports; and (f) stipulations. All copies, reproductions, extracts, digests and

complete or partial summaries prepared from any DESIGNATED MATERIALS shall

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” both individually and collectively.

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also be considered DESIGNATED MATERIAL and treated as such under this Order.

3. A designation of Protected Material (i.e., “CONFIDENTIAL,” “RESTRICTED –

ATTORNEYS’ EYES ONLY”) 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 DESIGNATED MATERIAL may request destruction of

that Protected Material 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.

4. “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 10 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;

(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;

(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;

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(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; (2) such consultants or experts are not presently 

employed by a competitor of a Party; (3) before access is given, the consultant or

expert has completed the Undertaking attached as Exhibit A hereto and the same is

served upon the producing Party with a current curriculum vitae of the consultant or

expert at least ten (10) days before access to the Protected Material is to be given

to that consultant or expert to permit the producing Party 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, 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.

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

6. 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.” The Parties do not believe source code production will be 

relevant for this litigation. To the extent it does become relevant the Parties will submit a 

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supplemental protective order to govern source code production and review.

7. For Protected Material designated RESTRICTED – ATTORNEYS’ EYES ONLY, access 

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

paragraphs 4(a-c) and (e-g). However, parties producing materials under this Order may 

limit access to material designated RESTRICTED – ATTORNEYS’ EYES ONLY to 

outside counsel for the parties (i.e., no access by in-house counsel). 

8. Any attorney representing the Parties, whether in-house or outside counsel, and any person 

associated with the Parties and permitted to receive the Parties’ Protected Material that is 

designated RESTRICTED – ATTORNEYS’ EYES ONLY (collectively “HIGHLY 

SENSITIVE MATERIAL”), who obtains, receives, or otherwise learns, in whole or in 

part, the Parties’ HIGHLY SENSITIVE MATERIAL under this Order shall not prepare, 

prosecute, supervise, or assist in the preparation or prosecution of any patent application 

(collectively “prosecute”) pertaining to the field of the invention of the patents-in-suit, 

defined as CMP Pad Conditioning, on behalf of the receiving Party or its acquirer, 

successor, predecessor, or other affiliate during the pendency of this Action and for one 

year 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 CMP Pad 

Conditioning. To avoid any doubt, “Prosecute” as used in this paragraph does not include 

representing a Party for secretarial purposes, such as, for example, recording assignments 

and paying maintenance fees and, further, does not include representing a Party in any and 

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all Inter Partes Review (IPR) proceedings related to the patents-in-suit, even if they have 

received and/or reviewed the other HIGHLY SENSITIVE MATERIAL, provided that 

they do not participate or assist in any claim drafting or amendment of claims in such IPR 

proceedings.

9. 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 material subject 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 

produces documents, information or other material it reasonably believes are protected 

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

immunity 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 

producing Party, except for any pages containing privileged or otherwise protected 

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

to the producing Party.

10. 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. 

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

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

11. 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 the DESIGNATED MATERIAL as 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; (v) counsel for a Party, 

including outside counsel and in-house counsel (subject to paragraph 7 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 access to 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.

12. 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” or “RESTRICTED – ATTORNEY’ EYES ONLY,” 

pursuant to this Order. Access to the deposition or hearing transcript so designated shall be 

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limited in accordance with the terms of this Order. Until expiration of the 30-day period, 

the entire deposition or hearing transcript shall be treated as confidential.

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

shall remain under seal 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.

14. 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. 

15. 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 seven (7) 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 

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

designation of the designating Party shall be maintained.

16. 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.

17. 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.

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

designate as “CONFIDENTIAL” or “RESTRICTED – ATTORNEYS’ EYES ONLY” any 

documents, information or other material, in whole or in part, produced or give by such 

Third Parties. The Third Parties shall have seven (7) 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 

“CONFIDENTIAL” in accordance with this Order.

19. Within thirty (30) days of final termination of this Action, including any appeals, all 

DESIGNATED AND NON-DESIGNATED MATERIAL, including all copies, duplicates, 

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

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excerpts or extracts incorporated into any privileged memoranda of the Parties, materials 

which have been admitted into evidence in this Action) shall be destroyed. No copies 

(including the document productions) shall be retained by a receiving Party or other 

individuals retained to assist them in this litigation, except counsel may retain copies of 

documents containing DESIGNATED AND NON-DESIGNATED MATERIAL in their 

files and the terms of this Protective Order shall continue to apply to such copies. The 

language contained in this paragraph shall not preclude counsel from retaining documents 

constituting attorney work product as defined by applicable law, or from retaining one copy 

of all such documents as part of a permanent litigation file that is otherwise subject to the 

confidentiality restrictions set forth herein. The receiving Party shall verify the destruction 

upon request by the producing Party.

20. 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.

21. 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 

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

action alleged to constitute a violation of this Order.

22. 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 as to void or make voidable whatever claim the Parties may have as to the proprietary 

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

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

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

24. Each of the Parties shall 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 if reasonably necessary to prepare and present this Action and (b) to apply for 

additional protection of DESIGNATED MATERIAL.

Case 4:23-cv-00753-SDJ Document 11-1 Filed 12/08/23 Page 12 of 14 PageID #: 357
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

CHIEN-MIN SUNG,

Plaintiff,

v.

TEXAS INSTRUMENTS 

INCORPORATED

Defendant.

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Civil Action No.: 4:23-cv-00753

JURY TRIAL DEMANDED

EXHIBIT 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” that is disclosed to me.

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

designated as “CONFIDENTIAL,” “RESTRICTED – ATTORNEYS’ EYES ONLY” or 

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.

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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 _______________________, 2023.

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