- 1 -

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

HEADWATER RESEARCH LLC,

 Plaintiff,

v.

SAMSUNG ELECTRONICS CO., LTD. 

and SAMSUNG ELECTRONICS 

AMERICA, INC.,

 Defendants.

§

§

§

§

§

§

§

§

§

§

§

CIVIL ACTION NO. 2:23-cv-641-JRG-RSP

PROTECTIVE ORDER 

WHEREAS, Plaintiff Headwater Research, LLC and Defendants Samsung Electronics Co., 

Ltd., and Samsung Electronics America, Inc., 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 

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

Case 2:23-cv-00641-JRG-RSP Document 43 Filed 06/30/24 Page 1 of 27 PageID #: 990
- 2 -

(a) Designating Documents: 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,” “CONFIDENTIAL – ATTORNEYS’ 

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

– SOURCE CODE.” The word “CONFIDENTIAL,” “CONFIDENTIAL –

ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL – OUTSIDE

ATTORNEYS’ EYES ONLY – SOURCE CODE” shall be placed clearly on each 

page of the Protected Material (except deposition and hearing transcripts) for which 

such protection issought, except for electronic files, as noted in Paragraph 1(d).

(b) Designating Transcripts: Parties or entities may designate depositions and other 

testimony with the appropriate designation by indicating on the record at the time 

the testimony is given or by sending written notice of how portions of the transcript 

of the testimony is designated within thirty (30) days of receipt of the transcript of 

the testimony. If no indication on the record is made, all information disclosed 

during a deposition shall be deemed “CONFIDENTIAL – ATTORNEYS’ EYES 

ONLY” until the time within which it may be appropriately designated as provided 

for herein has passed. Any Party that wishes to disclose the transcript, or 

information contained therein, may provide written notice of its intent to treat the 

transcript as non-confidential, after which time, any Party that wants to maintain 

any portion of the transcript as confidential must designate the confidential portions 

within seven (7) days, or else the transcript will be treated as non-confidential. Any 

Protected Material that is used in the taking of a deposition shall remain subject to

the provisions of this Protective Order, along with the transcript pages of the

Case 2:23-cv-00641-JRG-RSP Document 43 Filed 06/30/24 Page 2 of 27 PageID #: 991
- 3 -

deposition testimony dealing with such Protected Material. In such cases, the court 

reporter shall be informed of this Protective Order and shall be required to operate 

in a manner consistent with this Protective Order. For deposition and hearing 

transcripts, the word “CONFIDENTIAL,” “CONFIDENTIAL – ATTORNEYS’ 

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

– SOURCE CODE” 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 as 

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

“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY – SOURCE 

CODE.”

(c) Designating Videotaped Depositions: In the event the deposition is videotaped, 

the original and all copies of the videotape shall be marked by the video technician 

to indicate that the contents of the videotape are subject to this Protective Order, 

including the specific confidentiality level claimed if such a designation is made 

prior to the videotape being provided by the video technician, substantially along 

the lines of: “This videotape contains [confidential] testimony used in this case and 

is not to be viewed, or the contents thereof displayed or revealed, except pursuant 

to the terms of the operative Protective Order in this matter or pursuant to written 

stipulation of the Parties.”

(d) Designating Native Files: Where electronic files and documents are produced in

native electronic format, such electronic files and documents shall be designated

Case 2:23-cv-00641-JRG-RSP Document 43 Filed 06/30/24 Page 3 of 27 PageID #: 992
- 4 -

for protection by appending to the file names or designators information indicating 

whether the file contains “CONFIDENTIAL,” “CONFIDENTIAL –

ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL – OUTSIDE

ATTORNEYS’ EYES ONLY – SOURCE CODE” material. When such electronic 

files or documents are printed (for use at a deposition, in a court proceeding, or for 

provision in printed form to an expert or consultant approved pursuant to 

Paragraphs 5(f) and 29), the Party printing the electronic files or documents shall 

place on the printed document the appropriate designation, as well asthe production 

numbers associated with the electronic files or documents.

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 “CONFIDENTIAL – ATTORNEYS’ 

EYES ONLY” under this Order, unless and until such document is redesignated to have a 

different classification under this Order.

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

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

ATTORNEYS’ EYES ONLY – 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 pretrial, hearing or deposition testimony, or

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

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

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

CODE” both individually and collectively.

Case 2:23-cv-00641-JRG-RSP Document 43 Filed 06/30/24 Page 4 of 27 PageID #: 993
- 5 -

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

pleadings, exhibits to pleadings and other court filings; (d) affidavits; and (e) stipulations. 

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,” “CONFIDENTIAL –

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

ONLY – 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. Unauthorized or illegal distribution or publication of documents, 

information, or material without the producing party's permission shall not be deemed a 

waiver in whole or in part of a claim for confidential treatment of said unauthorized or 

illegally distributed or published documents, information, or material. Any Party that 

inadvertently or unintentionally produces Protected Material without designating it as 

DESIGNATEDMATERIALmay request destruction ofthatProtectedMaterial bynotifying 

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 or material 

derived from or based thereon irrespective of any other potential remedies provided in 

Federal Rule of Civil Procedure 26(b)(5)(B).

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

Case 2:23-cv-00641-JRG-RSP Document 43 Filed 06/30/24 Page 5 of 27 PageID #: 994
- 6 -

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 12 herein:

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

(b) employees of such outside 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) mock jurors and jury consultants who have signed an undertaking or agreement 

agreeing not to publicly disclose Protected Material and to keep any information 

concerning Protected Material confidential;

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

are officers or employees ofthe receiving Party, as well astheirimmediate paralegals and 

staff, to whom disclosure is reasonably necessary for the litigation of this Action, 

provided that any such person has agreed to be bound by the terms of this Order 

by signing the agreement attached hereto as Appendix A, which shall be provided 

to the producing Party before disclosure of Protected Material to the designated 

representative. 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;

(f) 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) 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 Undertaking to object to and notify the receiving Party in writing that 

it objectsto 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 asthe 

Partiesmay 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;

Case 2:23-cv-00641-JRG-RSP Document 43 Filed 06/30/24 Page 6 of 27 PageID #: 995
- 7 -

(g) any mediator who is assigned to hear this matter, and his or her staff, subject to 

their agreement to maintain confidentiality to the same degree as required by this 

Protective Order;

(h) 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, provided 

they have an obligation not to publicly disclose Protected Material and to keep any 

information concerning Protected Material confidential; and

(i) 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 contain or reflect 

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.

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

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

Case 2:23-cv-00641-JRG-RSP Document 43 Filed 06/30/24 Page 7 of 27 PageID #: 996
- 8 -

limitation, the producing Party may designate such Protected Material “CONFIDENTIAL

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

computer source code, including computer code, scripts, assembly, binaries, object code, 

source code listings and descriptions of source code, object code listings and descriptions 

of object code, and Hardware Description Language (HDL) or Register Transfer Level 

(RTL) files that describe the hardware design of any ASIC or other chip, and/or live data 

(that is, data as it exists residing in a database or databases), the producing Party may redact 

source code Material and designate the Protected Material as “CONFIDENTIAL –

ATTORNEYS’ EYES ONLY” and designate the original unredacted Protected Material 

as “CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY – SOURCE CODE.”

9. For Protected Material designated “CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” 

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

in Paragraphs 5(a-b), (d) and(f-i).

10. For Protected Material designated “CONFIDENTIAL ATTORNEYS’ EYES ONLY –

SOURCE CODE” (“Source Code Material”), the following additional restrictions apply:

(a) Access to a Party’s Source Code Material shall be provided only on two (2) “standalone” computer(s) (that is, the computer may not be linked to any network, 

including a local area network (“LAN”), an intranet or the Internet). Additionally, 

except as provided in Paragraph 10(l) below, the stand-alone computer(s) may only 

be located at the offices of the producing Party’s outside counsel; at the location 

of a witness providing deposition testimony on behalf of a producing Party; if 

produced by Defendants, at the Atlanta, GA office of outside counsel for 

Defendants, Fish & Richardson, P.C. or at another location agreed-upon by the 

parties; or at a location mutually agreed by the Parties. Any review of source code 

on the stand-alone computer(s) by the receiving Party must occur prior to the close 

of expert discovery unless otherwise agreed among the parties or ordered by the 

Court;

(b) Prior to the first inspection of any requested source code, the receiving Party shall 

provide at least five (5) days’ notice of the source code that it wishes to inspect.

Case 2:23-cv-00641-JRG-RSP Document 43 Filed 06/30/24 Page 8 of 27 PageID #: 997
- 9 -

For subsequent reviews, the receiving Party shall provide three (3) business days’ 

notice prior to any additional inspection. The receiving Party shall make 

reasonable efforts to restrict its requests for such access to the stand-alone 

computer(s) to normal business hours, which for purposes of this paragraph shall 

be 9:00 a.m. through 5:00 p.m local time. A list of names of persons who will 

inspect the source code material will be provided to the producing Party at the time 

of request for access. Upon reasonable notice from the receiving Party, the 

producing Party shall make reasonable effortsto accommodate the receiving Party’s 

request for access to the stand-alone 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 or any location 

agreed to under Paragraph 10(a) above shall not unreasonably hinder the receiving 

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

this Action. No recordable media or recordable devices, including without 

limitation sound recorders, computers, cell phones, peripheral equipment, cameras, 

CDs, DVDs, or drives of any kind, shall be permitted into the source code Review 

Room. 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 are being created or transmitted 

in any way. No copies of all or any portion of the source code may leave the room 

in which the source code is inspected except as otherwise provided herein. The 

receiving Party will not copy, remove, or otherwise transfer any source code from 

the source code computer including, without limitation, copying, removing, or 

transferring the source code onto any recordable media or recordable device. The 

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

relating to the source code but may not copy the source code into the notes. Proper 

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

secure room or the computer containing source code. Access to the secure room 

or the source code computer may be denied, at the discretion of the supplier, to any 

individual who fails to provide proper identification; the stand-alone computer(s) 

shall have disk encryption and be password protected. All persons entering the 

locked room containing the stand-alone computer(s) must agree to submit to 

reasonable security measures to ensure they are not carrying any prohibited items 

before they will be given access to the stand-alone computer(s);

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

how to start, log on to, and operate the stand-alone computer(s) in order to accessthe 

produced Source Code Material on the stand-alone computer(s);

(d) The producing Party will produce source code material in computer searchable 

format on the stand-alone computer(s) as described above; and upon reasonable 

request from the receiving Party will make reasonable efforts to install reasonable 

search and analysis tools appropriate for the type of source code material being 

produced pursuant to Paragraph 10(j) below;

Case 2:23-cv-00641-JRG-RSP Document 43 Filed 06/30/24 Page 9 of 27 PageID #: 998
- 10 -

(e) Access to Protected Material designated “CONFIDENTIAL – OUTSIDE 

ATTORNEYS’ EYES ONLY – 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(f) above, provided that: (a) such expert or consultant is not a current 

officer, director, or employee of a Party or of a competitor of a Party, nor 

anticipated at the time of retention to become an officer, director or employee of a 

Party or of a competitor of a Party; (b) such expert or consultant is not involved in 

competitive decision-making on behalf of a Party or a competitor of a Party; and

(c) no unresolved objections to disclosure exist after proper notice has been given 

to all Parties. A receiving Party may include excerpts of source code material in a 

pleading, exhibit, expert report, discovery document, deposition transcript, other 

Court document, 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, with any source code redacted;

(f) To the extent portions of source code material are quoted in a source code 

document, either (1) all source code material will be redacted from pages 

containing quoted source code material and the document will be stamped and 

treated as “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or (2) those pages 

containing quoted source code material will be separately stamped and treated 

as “CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY – SOURCE 

CODE”;

(g) Except as set forth elsewhere in Paragraph 10 below, no electronic copies of source 

code material shall be made without prior written consent of the producing Party;

(h) The receiving Party shall request for printing only such portions as are reasonably 

necessary from the standalone computers onto pre-Bates numbered and 

watermarked paper, which shall be provided by the producing Party, that bears the 

legend “CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY – SOURCE 

CODE.” Within three (3) days of request, the producing Party shall either (i) 

provide five (5) copy sets of such pages to the receiving Party or (ii) inform the 

requesting Party that it objects that the printed portions are excessive and/or not 

done for a permitted purpose. If, after meeting and conferring, the producing Party

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 of source code print outs marked “CONFIDENTIAL – OUTSIDE ATTORNEYS’ 

EYES ONLY – SOURCE CODE” 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.

Case 2:23-cv-00641-JRG-RSP Document 43 Filed 06/30/24 Page 10 of 27 PageID #: 999
- 11 -

and the receiving Party cannot resolve the objection, within three (3) business days, 

the receiving Party shall seek a Court resolution of whether the printed source code 

in question is reasonable and was printed for a permitted purpose. The receiving 

Party shall not request to print more than thirty (30) consecutive pages and no more 

than six hundred (600) pages in total of the producing Party’s source code 

throughout the duration of this action, without prior written approval by the 

producing Party, such approval to be granted or denied within three (3) business 

days of the receiving Party’s request and such approval not to be unreasonably 

requested or withheld;

(i) The receiving Party may not make photocopies of the received source code, other 

than as set forth below for purposes Court filings and proceedings, expert reports, 

contentions, and depositions. At the receiving Party's request, up to three (3) 

additional sets (or subsets) of printed source code may be requested and provided 

by the producing Party in a timely fashion. Copies may not be made for purposes 

of review elsewhere in the first instance (i.e., as an alternative to reviewing the 

source code material in the room in which the stand alone computers are located);

(j) At least seven (7) business days in advance of the date upon which the Receiving 

Party wishes to use the source code computers, the Receiving Party shall identify 

the licensed software tools it wishes to have installed and available for use on the 

source code computers, and provide, on a CDROM or other medium, a properly 

licensed copy of the software it requests to be installed. Any costs associated with 

acquiring licensesto requested software tools shall be borne by the Receiving Party. 

In the event that there are issues concerning the installation or use of such tool, the 

Parties, and their technical staff, shall meet and confer promptly to resolve such 

issues. The Parties agree that the following software tools are pre-approved for the 

purposes of this Action; however, no Party provides any warranty or representation 

about the functionality or compatibility of any of the following tools with the source 

code computers.3 To the extent other tools are requested, the Producing Party 

should not unreasonably withhold installation of such tools. If after meeting and 

conferring, the Parties cannot resolve an objection to a source code tool, the 

receiving Party shall seek Court intervention within three (3) days:

• SlickEdit (http://www.slickedit.com)

• Understand (http://www.scitools.com)

• Beyond Compare (http://www.scootersoftware.com)

• Acrobat Acrobat Pro

• Eclipse (https://www.eclipse.org/downloads/packages/release/2019-

3 The parties agree that the identified links and/or version numbers are for reference only, 

and will meet and confer if needed.

Case 2:23-cv-00641-JRG-RSP Document 43 Filed 06/30/24 Page 11 of 27 PageID #: 1000
- 12 -

03/r/eclipse-ide-cc-developers)

• Cygwin (http://www.cygwin.com)

• Notepad++ (https://notepad-plus-plus.org/download/v7.4.2.html)

• SlickEdit Pro (https://www.slickedit.com/)

• PowerGrep (http://www.powergrep.com)

• CLOC (https://sourceforge.net/projects/cloc/files/cloc/v1.64)

• Microsoft Office (https://products.office.com/en-us/compare-allmicrosoft-office-products)

• Microsoft Visual Studio Code (https://github.com/microsoft/vscode)

• Vim (https://github.com/vim/vim)

• SublimeText (https://www.sublimetext.com/)

● Xcode (https://developer.apple.com/xcode/)

(k) The receiving Party shall maintain a log of all paper copies of the source code. The 

log shall include the names of the reviewers and/or recipients of paper copies along 

with dates and locations where the paper copies are stored for all reviewers other 

than outside counsel for receiving Party. 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. 

Such photocopies shall also be on watermarked paper. The receiving Party may 

also temporarily keep the Source Code Printouts 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 Source Code Printouts 

(e.g., a hotel prior to a Court proceeding or deposition). Copies of source code 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, unless otherwise agreed by the producing Party. 

All paper copies of source code brought to the deposition must be returned to the 

receiving Counsel following the deposition for secure transport back to the secured 

locked area in the offices of the receiving Counsel; and

(l) A producing Party’s source code material may only be transported by the receiving 

Party at the direction of a person authorized under Paragraph 10(e) above to another 

person authorized under Paragraph 10(e) above, on paper 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, except as with respect to the transmission of 

contentions, expert reports, sealed court filings, or any other document, which 

pursuant to the Court’s rules, procedures, or orders must be filed or served

Case 2:23-cv-00641-JRG-RSP Document 43 Filed 06/30/24 Page 12 of 27 PageID #: 1001
- 13 -

electronically, as set forth in Paragraphs 10(e)-(f) and 10(i) and is at all times 

subject to the transport restrictions set forth herein.

(m) A producing Party may, at its election, prohibit a receiving Party’s source code 

reviewer(s) from bringing electronic devices (other than medical devices) into the 

room containing the stand-alone computer. If the receiving Party so elects, the 

producing Party must provide (1) a separate, secure, and substantially private 

workspace convenient to the review room for use by the receiving Party’s 

reviewer(s) to store and use electronic devices; and (2) a note-taking laptop located 

in the review room. The note-taking laptop must be equipped with Microsoft Word 

and Microsoft OneNote, or (after reasonable notice to the reviewing Party) 

equivalent software. The producing Party must provide for any reviewer to load 

notes, including electronic documents, onto the note-taking laptop prior to a review 

session and to retrieve notes from the note-taking laptop after a review session, for 

example by supervised use of a USB storage device. To prevent the use of such a 

USB storage device within the review room, the producing party may require that 

the transfer of electronic notes to/from the note-taking laptop be performed outside 

the review room. All notes, whether electronic or otherwise, will remain protected 

as work product. For the avoidance of doubt, no reviewer may at any time copy 

any portions orsections ofsource code material into either electronic or paper notes 

and counsel for the reviewing Party shall instruct its reviewer(s) not to copy or 

include any portion or section of source code material in either electronic or paper 

notes.

(n) All copies of any portion of the Source Code Printouts in whatever form 

shall be securely destroyed if they are no longer in use. Copies of Source 

Code Printouts 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.

(o) In the case of any conflict between a provision of Paragraph 10 (regarding source 

code) and any other provision in this Order, the provision in Paragraph 10 

(regarding source code) shall govern.

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

associated with a Party and who received the other Party’s Protected Material that is 

designated “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” and/or 

“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY – SOURCE CODE” 

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

Case 2:23-cv-00641-JRG-RSP Document 43 Filed 06/30/24 Page 13 of 27 PageID #: 1002
- 14 -

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 one year after its conclusion, 

including any appeals. For purposes of this paragraph, “prosecution” includes any activity 

related to (i) the preparation or prosecution (for any person or entity) of patent applications, 

including among others reissue applications or (ii) directly or indirectly participating 

drafting, amending, advising, or otherwise affecting the scope or maintenance of patent 

claims. 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-in-suit. For the 

avoidance of doubt, this provision shall not preclude any person (including counsel or 

experts) who obtains, receives, or otherwise learns, in whole or in part, the other Party’s 

DESIGNATED MATERIAL under this Order from participating in or representing it in 

reexamination proceedings, Post-Grant Review proceedings, Inter Partes Review 

proceedings, or Covered Business Method Review proceedings involving the patents-insuit provided that they do not advise on, consult on, prepare, draft, or edit any amendment 

to specifications or claims based on those proceedings, but would preclude participating in 

or representing it in reexamination proceedings, Post-Grant Review proceedings, Inter

Partes Review proceedings, or Covered Business Method Review proceedings if they do

Case 2:23-cv-00641-JRG-RSP Document 43 Filed 06/30/24 Page 14 of 27 PageID #: 1003
- 15 -

advise on, consult on, prepare, draft, or edit any amendment to specifications or claims 

based on those proceedings.

12. 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-clientprivilege,workproductdoctrine,orotherprivilege,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 and certified as such 

to the producing Party. The recipient(s) shall destroy all copies of such documents, 

information or other material If a Receiving Party discovers any actual unauthorized 

access to Protected Material, the Receiving party shall investigate, make reasonable efforts 

to remediate the breach, and reasonably notify the Designating Party.

13. 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.

Case 2:23-cv-00641-JRG-RSP Document 43 Filed 06/30/24 Page 15 of 27 PageID #: 1004
- 16 -

14. If a receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 

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

Protective Order, the receiving Party must immediately (a) notify in writing the 

Designating Party of the unauthorized disclosures, and provide all known, relevant 

information concerning the nature and circumstances of the disclosure; (b) use its best 

efforts to retrieve all unauthorized copies of the Protected Material and to ensure that no 

further or greater unauthorized disclosure and/or use thereof is made, including securing 

the agreement of the recipient(s) not to further disseminate the Protected Material in any 

form; (c) inform the person or persons to whom unauthorized disclosures were made of 

all the terms of this Order; and (d) request such person or persons to execute the 

“Acknowledgment and Agreement to Be Bound” that is attached hereto as Appendix A. 

Compliance with the foregoing shall not prevent the producing Party from seeking further 

relief from the Court. Unauthorized or inadvertent disclosure does not change the status 

of Protected Material or waive the right to hold the disclosed document or information as 

Protected.

15. 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

Case 2:23-cv-00641-JRG-RSP Document 43 Filed 06/30/24 Page 16 of 27 PageID #: 1005
- 17 -

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

employee of the producing Party; (v) counsel for a Party, including outside counsel and 

in-house counsel (subject to Paragraphs 9 and 11 of this Order); (vi) an independent 

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

disclosed and approved pursuant to Paragraphs 5(f) and 29; (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.

16. 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.

17. 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. However, each

of the parties reserves the right to request that the Court seal the courtroom or, if allowed

Case 2:23-cv-00641-JRG-RSP Document 43 Filed 06/30/24 Page 17 of 27 PageID #: 1006
- 18 -

by the Court, during the presentation of any testimony relating to or involving the use of 

any Protected Material.

18. 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 

designation of the designating Party shall be maintained.

19. 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.

20. The parties agree that an expert’s drafts reports, notes, and outlines of draft reports shall 

not be subject to discovery in this case, nor shall any such drafts, notes, or outlines of draft 

reports that the expert prepared in other cases that are not publicly available be subject to 

discovery in this case. Discovery of materials provided to experts shall be limited to those

Case 2:23-cv-00641-JRG-RSP Document 43 Filed 06/30/24 Page 18 of 27 PageID #: 1007
- 19 -

materials, facts, expert opinions, and other matters relied upon by the experts in forming 

their final report, trial or deposition testimony, or any opinion in this case. No 

conversations or communications between counsel and any expert will be subject to 

discovery unless the conversations or communications are relied upon by such experts in 

formulating opinions that are presented in reports, trial, or deposition testimony in this 

case. Materials, communications (including email), and other information exempt from 

discovery under this paragraph shall be treated as attorney-work product for the purposes 

of this litigation. This provision does not change the existing protections for expert 

discovery and exceptions thereto set forth in Fed. R. Civ. P. 26(b)(4).

21. 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 designate material for protection under this Order.

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

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

any documents, information or other material, in whole or in part, produced or given by 

such Third Parties. In the absence of any earlier designation, 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 untilsuch a designation has been made, 

whichever occurssooner, all documents, information or other materialso produced or given 

shall be treated as “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” for three (3) days 

and then as “CONFIDENTIAL” for the remainder of the 10-day period.

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

Case 2:23-cv-00641-JRG-RSP Document 43 Filed 06/30/24 Page 19 of 27 PageID #: 1008
- 20 -

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 

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 receiving Party’s election either be 

returned to the producing Party or be destroyed. Notwithstanding the foregoing, outside 

counsel of record shall be entitled to maintain, for archival purposes only, copies of 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. Source Code Printouts shall not be maintained. Any such archived 

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

counsel for the Party retaining the materials. 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 electronic archives are not used as reference materials for a 

receiving Party’s business operations.

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

Case 2:23-cv-00641-JRG-RSP Document 43 Filed 06/30/24 Page 20 of 27 PageID #: 1009
- 21 -

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.

25. 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.

26. 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.

27. 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.

28. 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 

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

protection of DESIGNATED MATERIAL.

Case 2:23-cv-00641-JRG-RSP Document 43 Filed 06/30/24 Page 21 of 27 PageID #: 1010
- 22 -

29. Prior to disclosing any Protected Material to any person described in Paragraph 5(f) 

(referenced below as “Person”), the Party seeking to disclose such information shall 

provide the Producing Party with written notice that includes:

(a) the name and current address of the Person;

(b) an up-to-date curriculum vitae of the Person;

(c) the present employer and title of the Person;

(d) an identification of all of the Person’s past and current employment and consulting 

relationships in the past five (5) years, including direct relationships and 

relationships through entities owned or controlled by the Person, including but not 

limited to an identification of any individual or entity with or for whom the Person 

is employed or to whom the Person provides consulting services and a description 

of any job responsibilities or consulting services relating to product design, 

development, sales, marketing, pricing, patenting, or licensing;

(e) an identification of all patents and pending patent applications on which the Person 

is named as an inventor, has been involved in prosecuting, or in which the Person 

has any ownership or pecuniary interest; and

(f) a list of the cases in which the Person has testified at deposition or trial within the 

last five (5) years.

Further, the Party seeking to disclose Protected Material shall provide such other 

information regarding the Person’s professional activities reasonably requested by the 

producing Party for it to evaluate whether good cause exists to object to the disclosure of 

Protected Material to the outside expert or consultant. Within five (5) business days of 

receipt of the disclosure of the Person, the producing Party or Parties may object in writing 

to the Person for good cause. In the absence of an objection at the end of the five (5) 

business day period, the Person shall be deemed approved under this Protective Order. 

There shall be no disclosure of Protected Material to the Person prior to expiration of this 

five (5) business day period. If the Producing Party objects to disclosure to the Person 

within such five (5) business day period, the Parties shall meet and confer via telephone or

Case 2:23-cv-00641-JRG-RSP Document 43 Filed 06/30/24 Page 22 of 27 PageID #: 1011
- 23 -

in person within three (3) business days following the objection and attempt in good faith 

to resolve the dispute on an informal basis. If the dispute is not resolved, the Party 

objecting to the disclosure will have five (5) business days from the date of the meet and 

confer to seek relief from the Court. If relief is not sought from the Court within that time, 

the objection shall be deemed withdrawn. If relief is sought, designated materials shall not 

be disclosed to the Person in question until the Court resolves the objection. Prior to 

receiving any Protected Material under this Order, the Person must execute a copy of the 

“UNDERTAKING REGARDING PROTECTIVE ORDER” (Appendix A hereto) and

serve it on all Parties.

30. An initial failure to object to a Person under Paragraph 29 shall not preclude the nonobjecting Party from later objecting to continued access by that Person for good cause. If 

an objection is made, the Parties shall meet and confer via telephone or in person within 

three (3) business days following the objection and attempt in good faith to resolve the 

dispute informally. If the dispute is not resolved, the Party objecting to the disclosure will 

have five (5) business days from the date of the meet and confer to seek relief from the 

Court. The designated Person may continue to have access to information while the 

objection is being resolved.

31. Legal Advice Based on Protected Material. Nothing in this Protective Order shall be 

construed to prevent counsel from advising their clients with respect to this case based in 

whole or in part upon Protected Materials, provided counsel does not disclose the 

Protected Material itself except as provided in this Order.

32. 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

Case 2:23-cv-00641-JRG-RSP Document 43 Filed 06/30/24 Page 23 of 27 PageID #: 1012
- 24 -

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

additional protection of DESIGNATED MATERIAL.

33. Disclosure of Protected Material shall be subject to all applicable laws and regulations 

relating to the export of technical data contained in such Protected Material, including the 

release of such technical data to foreign persons or nationals in the United States or 

elsewhere. Each party receiving Protected Material shall comply with all applicable 

export control statutes and regulations. See, e.g., 15 C.F.R. § 734.2(b). No Protected 

Material may leave the territorial boundaries of the United States of America or be made 

available to any foreign national who is not (i) lawfully admitted for permanent residence 

in the United States or (ii) identified as a protected individual under the Immigration and 

Naturalization Act (8 U.S.C. § 1324b(a)(3)). Without limitation, this prohibition extends 

to Protected Material (including copies) in physical and electronic form. The viewing of 

Protected Material through electronic means outside the territorial limits of the United 

States of America is similarly prohibited. Notwithstanding this prohibition, Protected 

Material may be taken outside the territorial limits of the United States if it is reasonably 

necessary for a deposition taken in a foreign country. The restrictions contained within 

this paragraph may be amended through the consent of the producing Party to the extent 

that such agreed to procedures conform with applicable export control laws and 

regulations.

34. No Party may upload, share, or use another Party’s DESIGNATED MATERIAL in any 

way with any generative artificial intelligence technologies (e.g., ChatGPT).

36. Data Breach. In the event any Party encounters a Data Breach, the other Parties

shall reasonably cooperate with the Party who experienced the Data Breach in

Case 2:23-cv-00641-JRG-RSP Document 43 Filed 06/30/24 Page 24 of 27 PageID #: 1013
- 25 -

investigating any apparent unauthorized access or breach of Protected Materials. Any 

Party who experiences a Data Breach shall reasonably provide written notice of the breach 

to the other Parties as soon as is practicable and in no event later than 14 days from 

obtaining knowledge of the breach.

Case 2:23-cv-00641-JRG-RSP Document 43 Filed 06/30/24 Page 25 of 27 PageID #: 1014
- 1 -

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

HEADWATER RESEARCH LLC,

 Plaintiff,

v.

SAMSUNG ELECTRONICS CO., LTD. 

and SAMSUNG ELECTRONICS 

AMERICA, INC.,

 Defendants.

§

§

§

§

§

§

§

§

§

§

§

CIVIL ACTION NO. 2:23-cv-641-JRG-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,” 

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

ATTORNEYS’ EYES ONLY – SOURCE CODE” that is disclosed to me.

4. I understand that signing this Undertaking Regarding Protective Order does not authorize

Case 2:23-cv-00641-JRG-RSP Document 43 Filed 06/30/24 Page 26 of 27 PageID #: 1015
- 2 -

me to view Protective Material that I am not otherwise authorized to view pursuant to the 

terms of the Protective Order.

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

designated as “CONFIDENTIAL,” “CONFIDENTIAL –-- ATTORNEYS’ EYES 

ONLY,” or “CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY – 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.

6. 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 

Case 2:23-cv-00641-JRG-RSP Document 43 Filed 06/30/24 Page 27 of 27 PageID #: 1016