On November 19, 2013, Plaintiff Guitar Apprentice filed a Complaint against Defendant Ubisoft for patent infringement. (ECF No. 1.) Relevant to the instant Protective Order, Guitar Apprentice filed Plaintiff's Notice of Disagreement Regarding Protective Order on April 16, 2014. (ECF No. 21.) In the Notice, Plaintiff asserts that “the parties agree on all provisions except for the provision regarding the handling and review of source code.” (Id. at 1.) On April 17, 2014, the Patent Scheduling Conference was held. (ECF No. 22.) At the Patent Scheduling Conference, the Court ordered both parties to simultaneously brief the issue of disagreement on the Protective Order. (Id.) On April 25, 2014, each party submitted a brief in support of their proposed Protective Order. (ECF Nos. 25-26.) Guitar Apprentice filed its Supplemental Motion to Omit Prosecution Bar from Protective Order to Be Entered by the Court on November 5, 2014. (ECF No. 47.)

Federal Rule of Civil Procedure 26 “vests the trial judge with broad discretion to tailor discovery narrowly and to dictate the sequence of discovery.” Goad v. Mitchell, 297 F.3d 497, 505 n.7 (6th Cir. 2002) (quoting Crawford-El v. Britton, 523 U.S. 574, 598 (1998)); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 595 n.13 (2007). Under Rule 26, the Court may, “for good cause shown” enter an order “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense” of proposed discovery or disclosure. Generally, the burden of proving good cause exists falls on the party seeking the protective order. In re Deutsche Bank Trust Co., 605 F.3d 1373, 1378 (Fed. Cir. 2010). Where parties disagree on a particular provision in a protective order, courts have held the burden of showing good cause falls on the party seeking to limit discovery. See Document Generation Corp. v. Allscripts, LLC, No. 6:08-CV-479, 2009 WL 1766096, at *2 (E.D. Tex. June 23, 2009) (citing In re Terra Int'l, Inc., 134 F.3d 302, 306 (5th Cir. 1998)).

Furthermore, “Rule 26(b)(2) directs the court to limit or forbid unduly burdensome discovery.” 8A Charles Alan Wright, et al., Federal Practice and Procedure, § 2038, at 184-85 (3d ed. 2010). Rule 26 provides in pertinent part:

*2 Fed. R. Civ. P. 26(b)(2)(C)(iii).

The present dispute between the parties revolves around the disclosure and proper handling of the parties' source code. According to the Local Patent Rules of this District:

(LPR 2.2.) The Local Patent Rules further state, “Should a party desire to file materials designated for protection under this Rule with the Court before the entry of a protective order, the materials shall be filed under seal, and this Rule shall authorize the Clerk of Court to accept the sealed filing.” (Id.) Under the default Stipulated Patent Case Protective Order in this District:

(LPR App. A ¶ 4.) The default Protection Order further requires in relevant part:

(Id. ¶ 6(b).) Included in the categories of persons that may view documents designated as Attorneys Eyes Only are outside counsel of record, the Court, court reporters and recorders, persons creating or receiving documents, consultants, investigators, experts, and others by consent. (Id.¶¶ 6(b)(1)-(6).) The default Protective Order also contemplates:

(Id. ¶ 6(c).) Both parties have agreed that a higher level of protection of source code is appropriate in the instant case; however, the parties disagree on the specific terms of protection. (See ECF No. 25 at 3-4.)

Guitar Apprentice proposes that the producing party “provide the source code directly to the requesting party's counsel on a secure, hardware-encrypted hard drive. The requesting party's counsel would then provide the hardware-encrypted hard drive to the expert witness to review the source code.” (Id. at 4.) “Under Guitar Apprentice's proposal, the expert would use a stand-alone computer, with the source code only stored on the encrypted external hard drive.” (Id. at 7.) The stand-alone computer “would run on Windows (XP or 7), ... be completely disconnected from any network,” and have USB and Optical drives disabled. (Id. at 7-8.) Further, “the expert would be required to sign in and out of the computer on each use.” (Id. at 8.) “The expert would be allowed to print relevant source code pages and would have access to a non-camera enabled phone in order to conduct trouble shooting or consultation with counsel.” (Id. at 8.) Guitar Apprentice asserts that under this set of procedures “[t]he requesting party itself would never see or even have access to the source code.” (Id. at 4.)

*3 Guitar Apprentice characterizes Ubisoft's proposed Protective Order as “onerous and inefficient and [one that] would not provide substantially more security.” (Id.) Guitar Apprentice bases its argument on the fact that the requesting party “would have to send its counsel and its expert witness to the producing party's counsel's office,” and “[t]he requesting party's expert would only be able to view the source code during the producing party's counsel's business hours.” (Id. at 5.) Guitar Apprentice further asserts that “the expert would only be able to take handwritten notes.” (Id. at 5.) Additionally, Guitar Apprentice argues that “Ubisoft's proposal actually provides less security as encryption is not required since it relies on physical security, i.e “secure offices” or a “locked container.” (Id. at 7.)

In light of the restrictions proposed by Ubisoft, Guitar Apprentice urges the Court to adopt a less onerous protective order similar to the protective order issued in Innov. Solutions and Support, Inc. v. J2, Inc., No. 05-CV-2665-JPM-tmp (W.D. Tenn. Dec. 19, 2008). (ECF No. 25 at 5.) Guitar Apprentice asserts that the protective order in that case “tracks closely with the standard protective order included in the Local Patent Rules.” (Id. (citing J2, No. 05-CV-2665-JPM-TMP (W.D. Tenn. Apr. 12, 2006) (ordering entry of protective order)).)

Ubisoft proposes that the producing party's source code be available only at the offices of the producing party's outside counsel. (ECF No. 26 at 2.) Ubisoft argues that courts have adopted similar provisions as a “default” standard. (See id. (citing Eastern District of Texas Sample Protective Order in Patent Cases, ¶ 10(a); Northern District of California Stipulated Protective Order, ¶ 9(c)).) According to Ubisoft, courts have “determined that heightened protection of a company's most sensitive and confidential source code trumps any hypothetical inconvenience to the reviewing party.” (Id. at 3 citing (Dynetix Design Solns., Inc. v. Synopsys, Inc., No. C–11–05973 PSG, 2012 WL 1232105 (N.D. Cal. April 12, 2012); Porto Techn. Co., Ltd. v. Cellco Partnerhsip, Case No. 3:12-cv-00678-HEH, Dkt. No. 35 at 2 (E.D. Va. Jan. 14, 2013); Prism Techs., LLC v. Adobe Systems, Inc., No. 8:10CV220, 2011 WL 5523389, at *1 (D. Neb. Nov. 14, 2011)).) Ubisoft further asserts that courts have rejected Guitar Apprentice's proposal that the source code be made available at the office of the receiving party's outside counsel. (Id. at 3-4 (citing Geotag, Inc. v. Frontier Comm'n Corp. et al., Case No. 2:12-cv-00541-JRG, Dkt. No. 62, at 5-6 (E.D. Tex. Jan. 18, 2013); Prism, 2011 WL 5523389, at *1).) Ubisoft supports this assertion, arguing that the Federal Circuit “affirmed the adoption of a source code review provision substantively identical to Ubisoft's proposal.” (Id. at 4 (citing In re Dynetix Design Solutions, Inc., 473 Fed. Appx. 896 (Fed. Cir. Aug. 2, 2012)).)

Additionally, Ubisoft argues that its source code would be put at risk if sent to the office of Guitar Apprentice's lawyers at Waddey & Patterson. From Ubisoft's point of view, “lawyers at Waddey & Patterson (W&P) have been on two-year quest to sue Ubisoft for patent infringement,” and “W&P is incapable of maintaining separation between lawyers reviewing Ubisoft's source code and lawyers prosecuting patents.” (Id. at 5-6.) In support of this assertion, Ubisoft points to the deposition testimony of Gary Montle, a lawyer at Waddey & Patterson. (Id. at 5-6.) According to Ubisoft, Montle's testimony shows that “[r]ather than ‘wall off’ prosecution from litigation, W&P inter-mixes these activities.” (Id. at 6.) “This lack of division creates a real risk to Ubisoft that its own source code could potentially be used against it, whether in the patent office or by way of a product in the consumer market.” (Id. at 6 (citing In re Papst Licensing, GmbH, Patent Litig., No. MDL 1278, 2000 WL 554219, at *4 (E.D. La. May 4, 2000)(restricting disclosure of confidential information because the risk of inadvertent disclosure or misuse by a firm involved in the prosecution and litigation of similar patents outweighed any potential impairment to plaintiff's counsel)).)

*4 The Court agrees to a large extent with Ubisoft. The Court finds persuasive Ubisoft's cited case law and arguments related to the confidentiality of Ubisoft's source code. The Court notes that this case is different from Dynetix in that the default rule in this District is not the same as that of the Northern District of California, which is to review source code at the office of the producing party's outside counsel. The reasons to maintain the source code at the office of the producing party's counsel in the present case, however, are compelling. The Court finds that it would be inappropriate to allow Ubisoft's source code to be housed at Waddey & Patterson given Waddey & Patterson's prosecution of the current patent and the evidence produced by Ubisoft that Waddey & Patterson may not be able to adequately segregate prosecution counsel from litigation counsel. (See Montle Rough Tr. 13-15, 80-81, 66-67, 212, 221-222, ECF No. 26-7.) The Court further finds that the sensitivity of the source code should be protected over relatively minor inconveniences to the receiving party. Therefore, the Court agrees with Ubisoft that source code should be maintained at the office of the producing party's outside office.

The Court recognizes, however, that major inconvenience and cost should be avoided if possible. In this regard, Guitar Apprentice's concern over extensive travel has merit. Moreover, neither party explains why the source code should not be maintained at the office of local outside counsel. Accordingly, the Court includes a provision in the Protective Order that the source code shall be made available at the office of the producing party's local outside counsel upon request and reasonable notice by the receiving party.

Regarding the other terms of Source Code provision, the Court notes that Ubisoft's proposal to allow only handwritten notes is overly burdensome on authorized individuals, who are already required to maintain confidentiality. Accordingly, the Court declines to require only handwritten notes.

All other terms in the final Protective Order were determined in the interest of a “just, speedy, and inexpensive determination” of the case. See Fed. R. Civ. P. 1. The final protection order is included as Appendix A to this Order.

Although originally included in Guitar Apprentice's proposal, (ECF No. 21-1 at 12; ECF No. 25 at 7), Guitar Apprentice now requests to omit the Prosecution Bar to which it originally agreed, or in the alternative, “omit any reference to inter partes proceedings,” (ECF No. 47 at 1-2). In the undisputed portion of the proposed protection order, “counsel for Guitar Apprentice (Waddey & Patterson, P.C.) [agreed] that it will not be involved in the prosecution of or any proceeding before the U.S. Patent and Trademark Office regarding any patents or applications filed on behalf of Guitar Apprentice or relating to U.S. Patent No. 8,586,849 ....” (ECF No. 21-1 at 12.) The agreed-to Prosecution Bar included “representing or advising a party before a domestic or foreign agency in connection with a patent application, a reissue protest, ex parte reexamination, inter partes review, covered business method review, or inter partes reexamination.” (Id. at 13.) Guitar Apprentice argues the Prosecution Bar should be omitted because “[t]he circumstances of the case have changed substantially since that request was made....” (ECF No. 41 at 1.) Guitar Apprentice asserts that it “agreed to the prosecution bar on the presumption that any inter partesproceeding would be brought diligently, well before the parties and the Court expended substantial resources and time litigating this dispute.” (Id.at 2.) Guitar Apprentice further asserts that at the time the proposed Protective Order was submitted, neither party had completed claim construction briefs, taken part in the Claim Construction Hearing, or “expended significant effort on discovery requests, discovery production, or discovery review.” (Id. at 1-2.) “In all, it would be an abuse of judicial economy for Ubisoft to pursue an inter partes proceeding at this late stage.” (Id. at 2.)

The Court rejects Guitar Apprentice's arguments for omission of the previously agreed-to Prosecution Bar. Guitar Apprentice's primary argument for omission is that the litigation has progressed past the Claim Construction Hearing to its later stages. (See ECF No. 47.) Had the final Protective Order issued in the “infant” stages of litigation, as Guitar Apprentice argues, the Prosecution Bar would still have been effective through the entirety of the litigation. (See ECF No. 21-1 at 14-15.) Nothing in the terms of the Prosecution Bar or proposed Protective Order limit the time at which Ubisoft could pursue an inter partes review. (See generallyECF No. 21-1.) Guitar Apprentice's argument is more applicable to a motion to stay proceedings pending inter partes review than to the terms of the Protective Order. Thus, the Court finds the reasons to omit the Prosecution Bar provision from the Protective Order set forth by Guitar Apprentice to be unpersuasive. Accordingly, the prosecution bar shall be included in the Protective Order. The Court hereby DENIES Plaintiff Guitar Apprentice's Supplemental Motion for Protective Order (ECF No. 47).

*5 IT IS SO ORDERED, this 6th day of November, 2014.

In order to reasonably preserve the confidentiality of the parties' sensitive information, the Court hereby ORDERS as follows:

1. Scope. All disclosures, affidavits, and declarations and exhibits thereto, deposition testimony and exhibits, discovery responses, documents, electronically stored information, tangible objects, information, and other things produced, provided, or disclosed in the course of this action, which may be subject to restrictions on disclosure under this Order, and information derived directly therefrom (hereinafter referred to collectively as “documents”), shall be subject to this Order as set forth below. As there is a presumption in favor of open and public judicial proceedings in the federal courts, this Order shall be strictly construed in favor of public disclosure and open proceedings wherever possible. The Order is also subject to the Local Rules of this District and the Federal Rules of Civil Procedure on matters of procedure and calculation of time periods.

2. Form and Timing of Designation. A party may designate documents as confidential and restricted in disclosure under this Order by placing or affixing the words “CONFIDENTIAL-SUBJECT TO PROTECTIVE ORDER” (hereinafter referred to as “CONFIDENTIAL”) or “ATTORNEYS EYES ONLY—SUBJECT TO PROTECTIVE ORDER” (hereinafter referred to as “ATTORNEYS EYES ONLY”) or “ATTORNEYS EYES ONLY—SOURCE CODE—SUBJECT TO PROTECTIVE ORDER” (hereinafter referred to as “SOURCE CODE”) (collectively hereinafter a “confidentiality designation”) on the document in a manner that will not interfere with the legibility of the document and that will permit complete removal of the designation. Documents shall be designated prior to or at the time of the production or disclosure of the documents. When a tangible object is produced for inspection, subject to protection under this Order, a photograph thereof shall be produced at the time of inspection labeled with a confidentiality designation. Thereafter, any information learned or obtained as a result of the inspection shall be subject to protection under this Order in accordance with the applicable designation. When electronically stored information is produced, which cannot itself be marked with a confidentiality designation, the physical media on which such electronically stored information is produced shall be marked with the applicable designation. The party receiving such electronically stored information shall then be responsible for labeling any copies that it creates thereof, whether electronic or paper, with the applicable designation. By written stipulation, the parties may agree temporarily to designate original documents that are produced for inspection with a confidentiality designation, even though the original documents being produced have not themselves been so labeled. All information learned in the course of such an inspection shall be protected in accordance with the stipulated designation. The copies of documents that are selected for copying during such an inspection shall be marked with a confidentiality designation as required under this Order and, thereafter, the copies shall be subject to protection under this Order in accordance with their designation. The designation of documents for protection under this Order does not mean that the document has any status or protection by statute or otherwise, except to the extent and for the purposes of this Order.

*6 3. Documents Which May be Designated CONFIDENTIAL. Any party may designate documents as CONFIDENTIAL upon making a good faith determination that the documents contain information protected from disclosure by statute or that should be protected from disclosure as confidential business or personal information, medical or psychiatric information, trade secrets, personnel records, or such other sensitive commercial information that is not publicly available. Public records and documents that are publicly available may not be designated for protection under this Order.

4. Documents Which May be Designated ATTORNEYS EYES ONLY. Any party may designate documents as ATTORNEYS EYES ONLY or ATTORNEYS EYES ONLY—SOURCE CODE upon making a good faith determination that the documents contain information protected from disclosure by statute or that should be protected from disclosure as trade secrets or other highly sensitive business or personal information, the disclosure of which is likely to cause significant harm to an individual or to the business or competitive position of the designating party.

5. Depositions.

a. Deposition testimony shall be deemed CONFIDENTIAL or ATTORNEYS EYES ONLY, or ATTORNEYS EYES ONLY—SOURCE CODE only if designated as such. Such designation shall be specific as to the portions of the transcript or any exhibit designated for protection under this Order. Thereafter, the deposition testimony and exhibits so designated shall be protected, pending objection, under the terms of this protective order. By stipulation read into the record, the parties may agree temporarily to designate a preceding or succeeding portion of the deposition or an entire deposition and the exhibits used therein for protection under this Order, pending receipt and review of the transcript. In such a circumstance, the parties shall review the transcript within twenty (20) days of the receipt thereof and specifically designate the testimony and exhibits that will be protected under this Order. Thereafter, only the specifically designated testimony and exhibits shall be protected under the terms of this Order.

6. Protection of Confidential Material.

Documents designated CONFIDENTIAL under this Order shall not be used for any purpose whatsoever other than the prosecution or defense of this action, and of any appeal thereof. The parties and counsel for the parties shall not disclose or permit the disclosure of any documents designated CONFIDENTIAL to any third person or entity, except as set forth in subparagraphs (i)-(vii). Subject to these requirements, the following categories of persons may be allowed to review documents that have been designated CONFIDENTIAL:

b. Protection of Documents Designated ATTORNEYS EYES ONLY.Documents designated ATTORNEYS EYES ONLY or ATTORNEYS EYES ONLY—SOURCE CODE under this Order shall not be used for any purpose whatsoever other than the prosecution or defense of this action, and of any appeal thereof. The parties and counsel for the parties shall not disclose or permit the disclosure of any documents designated ATTORNEYS EYES ONLY or ATTORNEYS EYES ONLY—SOURCE CODE to any third person or entity, except as set forth in subparagraphs (i)-(vi). Subject to these requirements, the following categories of persons may be allowed to review documents that have been designated ATTORNEYS EYES ONLY or ATTORNEYS EYES ONLY—SOURCE CODE.

c. Prior to a person or entity who signs the Acknowledgement of Attachment A being given access to CONFIDENTIAL or ATTORNEYS EYES ONLY or ATTORNEYS EYES ONLY—SOURCE CODE Material, the party desiring to supply such person or entity with such Material shall supply the name, all entities with whom the person has worked over the last five (5) years, and a CV of such person or entity to the designating party for the Material. If, within seven (7) calendar days of the designating party receiving said name, employer, and CV, the designating party objects to such disclosure, then such information shall not be shown to said person or entity absent agreement by the designating party, or Court order.

d. Control of Documents. Counsel for the parties shall take reasonable and appropriate measures to prevent unauthorized disclosure of documents designated for protection under this Order. Counsel shall maintain the originals of the forms signed by persons acknowledging their obligations under this Order for a period of one (1) year after dismissal of the action, the entry of final judgment and/or the conclusion of any appeals arising therefrom.

*8 e. Copies. All copies of documents designated for protection under this Order, or any individual portion of such a document, shall be marked with a confidentiality designation if the words do not already appear on the copy. All such copies shall be entitled to the protection of this Order. The term “copies” shall not include indices, electronic databases, or lists of documents, provided these indices, electronic databases, or lists do not contain substantial portions or images of the text of designated documents or otherwise disclose the substance of the designated documents.

f. Inadvertent Production. Inadvertent production of any document or information without a designation of CONFIDENTIAL or ATTORNEYS EYES ONLY or ATTORNEYS EYES ONLY—SOURCE CODE shall be governed by Federal Rules of Evidence Rule 502.

7. Handling and Provision of Source Code. To the extent any producing party produces computer Source Code for inspection, such Source Code, and any documents containing representations, excerpts, or descriptions of it, may be produced under the designation ATTORNEYS EYES ONLY—SOURCE CODE. The parties agree that any copies, documents or notes pertaining to such Source Code also shall automatically be designated ATTORNEYS EYES ONLY—SOURCE CODE. Access to such ATTORNEYS EYES ONLY—SOURCE CODE information by the receiving party shall be limited to the manner provided below:

a. Source Code information designated hereunder and made available for inspection shall be maintained in the custody and control of the producing party's outside attorneys. Upon request and with reasonable notice, the producing party will make its Source Code available at the office of the producing party's local outside counsel. Reasonable notice shall not constitute less than three (3) business days. 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 8:00 a.m. through 6:00 p.m. Upon reasonable notice from the receiving party, the producing Party shall make reasonable efforts to 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 shall not unreasonably hinder the receiving Party's ability to efficiently and effectively conduct the prosecution or defense of this Action.

b. Only those persons identified in Paragraph 6(b)(i)-(vi) may have access to inspect the Source Code (the “Authorized Individuals”).

c. Source Code shall be provided for inspection only on a “stand–alone” computer (that is, not connected to a network, Internet or peripheral device save a printer) at a secure, locked facility as designated in paragraph 7(a) above. The producing party may require presentation of photo identification by representatives of the receiving party prior to inspection and the producing party may maintain a sign-in sheet that must be signed upon entry and departure of the room containing the standalone computer. Use of any electronic device (e.g., smartphone, camera, laptop, USB memory stick, CDs, floppy disk, portable hard drive, etc.) with the exception of a non-camera enabled non-smartphone is prohibited while accessing the computer containing the Source Code Material. A non-camera enabled non-smartphone is allowed solely for the purpose of conducting trouble shooting or consultation with outside counsel authorized to access to the Source Code. Authorized Individuals may also use searching tools (as agreed upon by the parties and provided by the producing party) to inspect the Source Code. Additionally, the stand-alone computer shall be enabled with software adequate for note taking by the Authorized Individuals. Authorized Individuals shall have the capability of printing their notes in a secure manner consistent with work product protection of the Federal Rules of Evidence. Notes may contain limited portions of the Source Code, but only to the extent necessary to identify the section of the Source Code relevant to the notes taken.

*9 d. Copies of the Source Code and other materials produced shall only be made for the purposes of this litigation. The receiving party may print from the stand-alone computer limited portions of the Source Code only to the extent those portions are reasonably necessary to facilitate the receiving party's preparation of court filings, taking deposition, preparing expert reports, infringement contentions, and related drafts and correspondences, and shall request only such portions as are relevant to the claims and defenses in the case and are reasonably necessary for such purpose. Alternatively, the receiving party may request from the producing party paper copies of limited portions of the Source Code subject to the same limitations as printing from the stand-alone computer. The producing party shall Bates number any Source Code printouts as “ATTORNEYS EYES ONLY—SOURCE CODE.” The receiving party shall not request or print copies of the Source Code in order to review blocks of Source Code in the first instance, i.e., as an alternative to reviewing that Source Code electronically on the standalone computer, as the purpose of the protections herein would be frustrated. In no event may the receiving party request or print any more than 30 consecutive pages or 250 total pages of Source Code printouts. The Parties agree to negotiate exceptions to this page limitation in good faith where it is reasonably necessary to exceed this page limitation. All copies of the Source Code shall be securely destroyed upon completion of the litigation.

e. Where Source Code is provided in hard copy form, such hard copies shall be kept in a secure, locked container and in a manner to prevent unauthorized access and duplication. Source Code produced in hard copy form may be transported only in a locked, secure container hand carried by outside counsel for the recipient. 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 Party may 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).

f. The producing party shall install tools that are sufficient for viewing and searching the source code and taking notes on the platform produced, if such tools exist and are generally commercially available. The receiving party may request that commercially available software tools for viewing and searching Source Code and taking notes be installed on the secured computer, provided, however, that such other software tools are reasonably necessary for the receiving party to perform its review of the Source Code consistent with all of the protections herein and do not permit compiling or storing the Source Code. The receiving party shall bear the cost and responsibility for obtaining a properly licensed copy of any commercially available software tool it requests to have installed on the secured computer.

g. The receiving party shall maintain a log of all individuals that have inspected any portion of the Source Code, including the names of the reviewers and/or recipients of paper copies and locations where the paper copies are stored. Any paper copies used during a deposition shall be retrieved by the producing party at the end of each day and must not be given to or left with a court reporter or any other unauthorized individual.

h. Except as provided in this sub–paragraph, the receiving party may not create electronic images or electronic copies of the Source Code from any paper copy of Source Code for use in any manner. Images or copies of Source Code shall not be included in correspondence between the Parties (references to production numbers shall be used instead), and shall be omitted from pleadings and other papers whenever possible. If a Party reasonably believes that it needs to submit a portion of Source Code as part of a filing with the Court, the Party may make an electronic image or copy of the Source Code for the purpose of that filing only, provided the Party takes all necessary steps to ensure the confidentiality of the Source Code is maintained, including without limitation filing any and all such copies of the materials with an application to file under seal. Any such electronic image or copy of the Source Code must be labeled “ATTORNEYS EYES ONLY—SOURCE CODE” as provided for in this Order. The Parties may maintain one electronic copy of the entire Court filing, including any electronic image or copy of the Source Code made part of that filing, but shall promptly destroy any other electronic images or copies of the Source Code once the filing has been made.

*10 i. Under no condition may any Authorized Individual disclose, in whole or in part, copies of, or the substance of, the Source Code of the producing party to an unauthorized person including any officers, directors, in–house counsel, employees, or prosecution or non–litigation consultants of the recipient.

j. No Source Code or documents describing Source Code shall be filed with the Court except under seal and referencing this Order.

k. Nothing in this Order shall obligate the Parties to produce any particular portion of the Source Code, and this Order is not an act or admission that any particular portion of a producing party's Source Code is discoverable.

l. Employees of counsel for the producing party shall be entitled to verify that persons accessing Source Code are duly authorized outside attorneys or outside experts under this Protective Order.

m. 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.

n. The parties may arrange, by mutual agreement, for the production and inspection of Source Code under terms that are less restrictive than those contained in this Order without further order of the Court. The producing party shall have the right to waive any of the protections afforded hereunder, and the receiving party does not waive any right to seek leave, for good cause shown, to modify the protections afforded hereunder based upon the facts and circumstances of any particular requested production.

8. Filing of CONFIDENTIAL, ATTORNEYS EYES ONLY, or ATTORNEYS EYES ONLY—SOURCE CODE Documents under Seal. The Court highly discourages the manual filing of any pleadings or other papers under seal. To the extent that a pleading or other paper references an exhibit designated for protection under this Order, then the pleading or other paper shall refer the Court to the particular exhibit filed under seal without disclosing the contents of any confidential information.

a. Before any exhibit designated for protection under this Order is filed under seal with the Clerk, the filing party shall first consult with the party that originally designated the document for protection under this Order to determine whether, with the consent of that party, the exhibit or a redacted version of the exhibit may be filed with the Court not under seal.

b. Where agreement is not possible or adequate, an exhibit designated for protection under this Order shall be filed electronically under seal in accordance with the Electronic Case Filing procedures of this Court.

c. Where filing electronically under seal is not possible or adequate, before an exhibit designated for protection under this Order is filed with the Clerk, it shall be placed in a sealed envelope marked CONFIDENTIAL or ATTORNEYS EYES ONLY, and the envelope shall also display the case name, docket number, a designation of what the exhibit is, the name of the party on whose behalf it is submitted, and the name of the attorney who has filed the exhibit on the front of the envelope. A copy of any exhibit filed under seal shall also be delivered to the judicial officer's chambers.

d. To the extent that it is necessary for a party to discuss the contents of any document designated for protection under this Order in a pleading or other paper filed with this Court, then such portion of the pleading or other paper shall be filed under seal. In such circumstances, counsel shall prepare two versions of the pleading or other paper: a public and a sealed version. The public version shall contain a redaction of references to CONFIDENTIAL or ATTORNEYS EYES ONLY or ATTORNEYS EYES ONLY—SOURCE CODE documents. The sealed version shall be a full and complete version of the pleading or other paper and shall be filed with the Clerk under seal as above. A copy of the unredacted pleading or other paper also shall be delivered to the judicial officer's chambers.

*11 9. Challenges by a Party to a Designation for Protection under this Order. Any document marked with a confidentiality designation is subject to challenge by any party or non-party with standing to object (hereafter “party”). Before filing any motions or objections to a designation for protection under this Order with the Court, the objecting party shall have an obligation to meet and confer in a good faith effort to resolve the objection by agreement. If agreement is reached confirming or waiving the confidentiality designation as to any documents subject to the objection, the designating party shall serve on all parties a notice specifying the documents and the nature of the agreement.

10. Action by the Court. Applications to the Court for an order relating to any documents designated for protection under this Order shall be by motion under Local Rule 7.1 and any other procedures set forth in the presiding judge's standing orders or other relevant orders. Nothing in this Order or any action or agreement of a party under this Order limits the Court's power to make any orders that may be appropriate with respect to the use and disclosure of any documents produced or used in discovery or at trial.

11. Use of Confidential Documents or Information at Trial. Absent order of the Court, all trials are open to the public, and there will be no restrictions on the use at trial of any document designated for protection under this Order. If a party intends to present at trial documents designated for protection under this Order, or information derived therefrom, such party shall provide advance notice to the party designating the documents for protection under this Order at least seven (7) days before the commencement of trial by identifying the documents or information at issue as specifically as possible (i.e., by Bates number, page range, deposition transcript lines, etc.). Upon motion of the party designating the document for protection under this Order, the Court may thereafter make such orders as are necessary to govern the use of such documents or information at trial.

12. Prosecution Bar. This provision memorializes the agreement of counsel for Guitar Apprentice (Waddey & Patterson, P.C.) that it will not be involved in the prosecution of or any proceeding before the U.S. Patent and Trademark Office regarding any patents or applications filed on behalf of Guitar Apprentice or relating to U.S. Patent No. 8,586,849 (“the '849 patent”). “Relating to” as used in this paragraph means any patents or applications claiming priority to or the benefit of, or incorporating by reference the '849 patent or any patent or application that the '849 patentrelies upon for priority or incorporates by reference. Further, absent written consent from Ubisoft, any individual who receives access to documents bearing a confidentiality designation shall not be involved in the prosecution of patents or patent applications relating to technology that is the subject of the accessed information, including without limitation the technical subject matter of the patent asserted in this action and any patent or application claiming priority to or otherwise related to the patent asserted in this action, before any foreign or domestic agency, including the United States Patent and Trademark Office (“the Patent Office”). For purposes of this paragraph, “prosecution” means directly or indirectly drafting, amending, advising, providing counsel or suggestion regarding or in any other way influencing, claim scope and/or language, embodiment(s) for claim coverage, claim(s) for prosecution, or products or processes for coverage by claim(s) relating to the subject matter of the patent asserted in this action, or otherwise affecting the scope or maintenance of patent claims. To avoid any doubt, “prosecution” as used in this paragraph includes representing or advising a party before a domestic or foreign agency in connection with a patent application, a reissue protest, ex parte reexamination, inter partes review, covered business method review, or inter partes reexamination. In addition, in connection with any such application, reissue protest, ex parte reexamination, inter partes review, or inter partes reexamination involving the patent-in-suit, Outside Counsel for Plaintiff shall not: (i) reveal any of Defendant's CONFIDENTIAL or ATTORNEYS EYES ONLY or ATTORNEYS EYES ONLY—SOURCE CODE material to any prosecuting reexamination counsel or agent; or (ii) consistent with Paragraph 6 herein, use any CONFIDENTIAL or ATTORNEYS EYES ONLY or ATTORNEYS EYES ONLY—SOURCE CODE information for any purpose other than this litigation. Outside counsel for Guitar Apprentice, Waddey & Patterson, represents and warrants that as of the date of execution of this Protective Order, it is not performing any prosecution work (as defined herein) on behalf of Guitar Apprentice or that concerns the technical subject matter of the patent asserted in this action and any patent or application claiming priority to or otherwise related to the patent asserted in this action. This Prosecution Bar shall begin when access to CONFIDENTIAL or ATTORNEYS EYES ONLY or ATTORNEYS EYES ONLY—SOURCE CODE information is first received by the affected individual and shall end the later of: (i) two (2) years after the settlement and dismissal of the producing party from this action, or (ii) the final non-appealable termination of this action.

*12 13. Obligations on Conclusion of Litigation.

a. Order Remains in Effect. Unless otherwise agreed or ordered, this Order shall remain in force after dismissal or entry of final judgment not subject to further appeal.

b. Return of Documents Designated for Protection Under this Order.Within thirty (30) days after dismissal or entry of final judgment not subject to further appeal, all documents designated for protection under this Order, including copies as defined in ¶ 6(d), shall be returned to the producing party unless: (1) the document has been offered into evidence or filed without restriction as to disclosure; (2) the parties agree to destruction in lieu of return; or (3) as to documents bearing the notations, summations, or other mental impressions of the receiving party, that party elects to destroy the documents and certifies to the producing party that it has done so. Notwithstanding the above requirements to return or destroy documents, counsel may retain copies of all pleadings, motions, orders, written discovery, and other papers filed with the Court or exchanged by the parties even though they may contain documents designated for protection under this Order. Counsel may also retain attorney work product, including an index which refers or relates to documents designated for protection under this Order, so long as that work product does not duplicate verbatim substantial portions of the text or images of documents designated for protection under this Order. This work product shall continue to be subject to the protections of this Order in accordance with the applicable designation. An attorney may use his or her work product in a subsequent litigation provided that its use does not disclose or use documents designated for protection under this Order.

c. Return of Documents Filed under Seal. After dismissal or entry of final judgment not subject to further appeal, the Clerk may elect to return to counsel for the parties or, after notice, destroy documents filed or offered at trial under seal or otherwise restricted by the Court as to disclosure.

14. Order Subject to Modification. This Order shall be subject to modification by the Court on its own motion or on motion of a party or any other person with standing concerning the subject matter. Motions to modify this Order shall be served and filed under Local Rule 7.1 and the presiding judge's standing orders or other relevant orders.

15. No Prior Judicial Determination. This Order is entered based on the representations and agreements of the parties and for the purpose of facilitating discovery. Nothing herein shall be construed or presented as a judicial determination that any documents designated for protection under this Order are entitled to protection under Rule 26(c) of the Federal Rules of Civil Procedure, or otherwise, until such time as the Court may rule on a specific document or issue.

16. Persons Bound. This Order shall take effect when entered and shall be binding upon all counsel and their law firms, the parties, and persons made subject to this Order by its terms.

*13 IT IS SO ORDERED, this 6th day of November, 2014.

The undersigned hereby acknowledges that he/she has read the Protective Order entered in the above-captioned action and attached hereto, understands the terms thereof, and agrees to be bound by its terms. The undersigned submits to the jurisdiction of the United States District Court for the Western District of Tennessee in matters relating to the Protective Order and understands that the terms of the Protective Order obligate him/her to use documents designated CONFIDENTIAL—SUBJECT TO PROTECTIVE ORDER or ATTORNEYS EYES ONLY—SUBJECT TO PROTECTIVE ORDER in accordance with the Order solely for the purposes of the above-captioned action, and not to disclose any such documents or information derived directly therefrom to any other person, firm, or concern.

The undersigned acknowledges that violation of the Protective Order may result in penalties for contempt of court.

Name (Print): ___________________________________

Job Title: ___________________________________

Employer: ___________________________________

Business Address: ___________________________________

_____________________________________________

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

Signature: ___________________________________

Date: ___________________________________