*1 Upon consideration of the Joint Motion for Entry of Protective Order (Doc. 26), it is ORDERED that the motion is GRANTED. The parties and all interested non-parties will be governed by the following provisions agreed to and submitted by the parties:

1. Classified Information

“Classified Information” means any information of any type, kind, or character that is designated as “Confidential,” “Highly Confidential—Attorney Eyes Only,” or “Highly Confidential—Source Code,” by any of the supplying or receiving persons, whether it be a document, information contained in a document, information revealed during a deposition, information revealed in an interrogatory answer, evidence in any medium other than in a traditional document, or otherwise (collectively “document”).

2. Qualified Persons

“Qualified Persons” has different meanings depending upon the nature of the Classified Information so designated.:

a. For Classified Information designated “Highly Confidential—Attorney Eyes Only” and “Highly Confidential – Source Code” information, “Qualified Persons” means:

b. For Classified Information designated “Confidential,” Qualified Persons:

c. Such other person as this Court may designate after notice and an opportunity to be heard and who agrees to be bound by this Protective Order. It is further ORDERED that:

3. Disclosure of Outside Experts or Consultants

Prior to disclosing the disclosing parties’ Classified Information to an expert or consultant retained by a party or its counsel, the requesting party that seeks to disclose to a retained expert or consultant any Classified Information first must make a written request to the disclosing party at least seven (7) calendar days before the first such disclosure that (1) states that the party seeks to disclose Classified Information to the retained expert or consultant, (2) identifies the expert or consultant by setting forth the full name of the expert or consultant and the address of his or her primary business or residence, (3) attaches a copy of the expert or consultant's current resume or curriculum vitae, (4) identifies the expert or consultant's current employer(s), (5) identifies (by name, address, telephone number and dates of service) each person or entity from whom the expert or consultant has received compensation for work in his or her areas of expertise or to whom the expert has provided professional services at any time during the preceding five years, (6) identifies (by name and number of the case, filing date, and location of court) any litigation in connection with which the expert or consultant has provided any professional services during the preceding five years, and (7) describes the nature of any relationship (including the purpose and length of relationship) that the expert or consultant has or has had with any Party to this Action. To the extent that the proposed expert considers any of the foregoing information on the expert's background and experience itself to be confidential, the requesting party may designate such information under this Protective Order.

A requesting party that makes a request and provides the information specified above may disclose Classified Information to the identified expert or consultant unless, within fourteen (14) calendar days of making the request, the requesting party receives a written objection from the disclosing party. Any such objection must be made in good faith, for good cause, and set forth in detail the grounds on which it is based.

A requesting party that receives a timely written objection must meet and confer with the disclosing party to try to resolve the matter by agreement. If no agreement is reached within ten (10) calendar days of the service of the objection, the disclosing party challenging the disclosure to the expert or consultant may request a discovery conference. The disclosing party challenging the disclosure shall have the burden of proof by a preponderance of the evidence on the issue of the sufficiency of the objection(s). If the disclosing party challenging the disclosure timely requests a discovery conference, Classified Information shall not be disclosed to the challenged individual until and unless a final ruling allowing such disclosure is made by this Court, or the disclosing party has consented in writing to the disclosure, whichever occurs first. If the disclosing party challenging the disclosure fails to request a discovery conference within ten (10) calendar days of having met and conferred, the requesting party may disclose the Classified Information to the expert or consultant. Disagreement by the disclosing party that the expert or consultant is competent to render an admissible opinion in this Action is not a valid basis for refusing disclosure. Likewise, the disclosure of designated material to an expert or consultant under the terms of this Order may not be used as evidence that the disclosing party acquiesced to the expertise or qualifications of the expert or consultant.

4. Designation Criteria

*3 a. Nonclassified Information. Classified information shall not include information that either:

b. Classified Information. A party shall designate as Classified Information only such information that the party in good faith believes in fact is confidential.

Information that is generally available to the public, such as public filings, catalogues, advertising materials, and the like, shall not be designated as Classified. Information and documents that may be designated as Classified Information include, but are not limited to, trade secrets, confidential or proprietary financial information, operational data, business plans, and competitive analyses, personnel files, personal information that is protected by law, and other sensitive information that, if not restricted as set forth in this order, may subject the producing or disclosing person to competitive or financial injury or potential legal liability to third parties.

Correspondence and other communications between the parties or with nonparties may be designated as Classified Information if the communication was made with the understanding or reasonable expectation that the information would not become generally available to the public.

c. For Highly Confidential—Attorney Eyes Only. The designation “Highly Confidential—Attorney Eyes Only” shall be reserved for information the disclosure of which to another Party or non-party would create a substantial risk of serious harm that could not be avoided by less restrictive means. The designation “Highly Confidential—Attorney Eyes Only” includes, but is not limited to, sensitive technical, financial, competitive, or personnel information, which is not generally known by third parties, including, by way of example, product design information, non-public financial information, pricing information, customer identification data, and certain study methodologies.

d. Highly Confidential—Source Code. Information that includes computer source code and/or live data (that is, data as it exists residing in a database or databases) (“Source Code Material”), may be designated as “Highly Confidential—Source Code.” Source Code Materials includes, but is not limited to, files containing source in “C”, “C++,” assembler, VHDL, Verilog, and digital signal processor (DSP), GDS II, and OASIS programming languages. Source Code Materials further include “.include” files, “.s” files, “.c” files, “.vhd” files, “.h” files, “make” files, link files, and other human-readable text files used in the generation and/or building of electronic hardware or software directly executed on a microprocessor, micro-controller, or DSP. This shall include header files and documents summarizing or containing excerpts of portions of source code.

5. Use of Classified Information

*4 All Classified Information provided by any party or nonparty in the course of this litigation shall be used solely for the purpose of preparation, trial, and appeal of this litigation and for no other purpose, and shall not be disclosed except in accordance with the terms hereof.

6. Marking of Documents

Documents provided in this litigation may be designated by the producing person or by any party as Classified Information by marking each page of the documents (except natively produced documents) so designated with a stamp indicating that the information is “Confidential”, “Highly Confidential—Attorney Eyes Only”, or “Highly Confidential – Source Code.” In lieu of marking the original of a document, if the original is not provided, the designating party may mark the copies that are provided or, if the nature of the documents does not allow marking on the documents themselves, to utilize some other means of indicating the specific status of specific evidence under this Protective Order. Originals shall be preserved for inspection.

7. Disclosure of Depositions

Information disclosed at (a) the deposition of a party or one of its present or former officers, directors, employees, agents, consultants, representatives, or independent experts retained by counsel for the purpose of this litigation, or (b) the deposition of a nonparty may be designated by any party as Classified Information by indicating on the record at the deposition that the testimony is “Confidential”, “Highly Confidential—Attorney Eyes Only”, or “Highly Confidential—Source Code” and is subject to the provisions of this Order.

Any party also may designate information disclosed at a deposition as Classified Information by notifying all parties in writing not later than 30 days after receipt of the transcript of the specific pages and lines of the transcript that should be treated as Classified Information thereafter. Each party shall attach a copy of each such written notice to the face of the transcript and each copy thereof in that party's possession, custody, or control. All deposition transcripts shall automatically be treated as Highly Confidential—Attorney Eyes Only for a period of 30 days after initial receipt of the transcript to allow for the designations hereunder.

To the extent possible, the court reporter shall segregate into separate transcripts information designated as Classified Information with blank, consecutively numbered pages being provided in a nondesignated main transcript. The separate transcript containing Classified Information shall have page numbers that correspond to the blank pages in the main transcript.

Counsel for a party or a nonparty witness shall have the right to exclude from depositions any person who is not authorized to receive Classified Information pursuant to this Protective Order, but such right of exclusion shall be applicable only during periods of examination or testimony during which Classified Information is being used or discussed.

8. Disclosure to Qualified Persons

a. To Whom. Classified Information shall not be disclosed or made available by the receiving party to persons other than Qualified Persons except as necessary to comply with applicable law or the valid order of a court of competent jurisdiction; provided, however, that in the event of a disclosure compelled by law or court order, the receiving party will so notify the producing party as promptly as practicable (if at all possible, prior to making such disclosure) and shall seek a protective order or confidential treatment of such information. Information designated as “Highly Confidential—Attorney Eyes Only” shall be restricted in circulation to Qualified Persons described in subparagraph 2(a).

b. Retention of Copies During this Litigation. Copies of Highly Confidential—Attorney Eyes Only and Highly Confidential—Source Code information shall be maintained only in the offices of retained counsel for the receiving party and, to the extent supplied to experts described in subparagraph 2(a)(ii), in the offices of those experts. Any documents produced in this litigation, regardless of classification, that are provided to Qualified Persons shall be maintained only at the office of such Qualified Person or its e-discovery vendor, if any, and only necessary working copies of any such documents shall be made. Copies of documents and exhibits containing Classified Information may be prepared by independent copy services, printers, or illustrators for the purpose of this litigation.

c. Each party's counsel shall maintain a log of all copies of Highly Confidential—Source Code documents that are delivered to Qualified Persons.

9. Unintentional Disclosures

*5 Documents unintentionally produced without designation as Classified Information later may be designated and shall be treated as Classified Information from the date written notice of the designation is provided to the receiving party.

If a receiving party learns of any unauthorized disclosure of Confidential Information or Highly Confidential—Attorney Eyes Only information, the party shall immediately upon learning of such disclosure inform the producing party of all pertinent facts relating to such disclosure and shall make all reasonable efforts to prevent disclosure by each unauthorized person who received such information.

10. Documents Protected for Inspections Prior to Designation

In the event documents are produced for inspection prior to designation, the documents shall be treated as Highly Confidential—Attorney Eyes Only during inspection. At the time of copying for the receiving parties, Classified Information shall be marked prominently “Confidential”, “Highly Confidential—Attorney Eyes Only”, or “Highly Confidential—Source Code” by the producing party.

11. For Classified Information designated Highly Confidential—Source Code, the parties agree to confer in good faith on an addendum to this Order covering source code specific issues, including at least the procedures for making source code information available for inspection, the conditions of inspection of source code information (including the number of individual permitted to conduct such inspections), the printing of source code information, the transport and storage of such printouts, the use of source code information at depositions and in filings with the Court, and appropriate product development and commercialization restrictions to be applied to any retained expert or consultant inspecting or reviewing such source code information.

12. Prosecution Bar

No individual retained by a party (including in-house or outside counsel, and/or retained experts or consultants) who has accessed any Producing Party's “Highly Confidential—Attorney Eyes Only” or “Highly Confidential—Source Code” Material may, without consent of the Producing Party, engage in any Prosecution Activity (as defined below) involving claims directly relating to the technology at issue in this Action, during the pendency of this Action and for a period ending two (2) years after (i) the complete resolution of this Action through entry of a final non-appealable judgment or order for which appeal has been exhausted; (ii) the complete settlement of all claims against the Producing Party in this Action; or (iii) the individual person(s) cease to represent or be associated with the Receiving Party. For purposes of this section, “Prosecution Activity” shall mean the preparation or amendment of claims or advice or counseling regarding the preparation of claims or amendment of claims in any patent application or patent, either as part of an original prosecution in the United States or elsewhere. Notwithstanding this paragraph, an attorney subject to this section may forward to counsel participating in the types of proceedings described above any references identified as prior art during the course of this Action and nothing in this section shall prevent any attorney from sending prior art to an attorney involved in any prosecution for purposes of ensuring that such prior art is submitted to the U.S. Patent and Trademark Office (or any similar agency of a foreign government) to assist a patent applicant in complying with its duty of candor. Nothing in this paragraph shall prevent any attorney or person who has accessed any Producing Party's “Highly Confidential—Attorney Eyes Only” or “Highly Confidential—Source Code” Material from participating in any way in any post-grant patent proceedings (e.g., reexamination, inter partes review, post-grant review, and/or the transitional program for covered business method patents) that is instituted or sought to be instituted challenging the validity of any patents; however, said attorney or person may not assist the Party owning the challenged patent in drafting, amending, or proposing for substitution to the PTO patent claims in said post grant proceeding(s).

13. Consent to Disclosure and Use in Examination

*6 Nothing in this order shall prevent disclosure beyond the terms of this order if each party designating the information as Classified Information consents to such disclosure or if the court, after notice to all affected parties and nonparties, orders such disclosure. Nor shall anything in this order prevent any counsel of record from utilizing Classified Information in the examination or cross-examination of any person who is indicated on the document as being an author, source, or recipient of the Classified Information, irrespective of which party produced such information.

14. Challenging the Designation

a. Classified Information. A party shall not be obligated to challenge the propriety of a designation of Classified Information at the time such designation is made. In the event that any party to this litigation disagrees with the designation of any information as Classified Information, the parties shall first try to resolve the dispute in good faith on an informal basis, such as by production of redacted copies. If the dispute cannot be resolved, the objecting party may object in writing to the party who designated the document or information as Classified Information and shall (i) specifically identify the Classified Information to which the party is objecting, including by Bates number; (ii) for each document or item of Classified Information subject to an objection, provide a detailed explanation for the basis for the objection; and (iii) the designation that the objecting party contends the Classified Information should maintain. If the designating party does not agree, the designating party shall have 14 days from the date the objecting party provides written notice to file a motion for protective order that specifically identifies the challenged material and sets forth the basis for maintaining its designation of the Classified Information. The disputed information shall remain Classified Information under the designating party's designation unless and until the Court orders otherwise. The Court in its discretion may assess attorneys’ fees and costs against a party that repeatedly unreasonably challenges properly designated Classified Information, or that repeatedly refuses to de-designate improperly designated Classified Information. If the designating party does not file a motion for a protective order within 14 days from the date of receiving such written notice, the document or information shall be treated as subject to the designation identified in the objecting party's written objection.

b. Qualified Persons. In the event that any party in good faith disagrees with the designation of a person as a Qualified Person or the disclosure of particular Classified Information to such person, the parties shall first try to resolve the dispute in good faith on an informal basis. If the dispute cannot be resolved, the objecting party shall have 14 days from the date of the designation or, in the event particular Classified Information is requested subsequent to the designation of the Qualified Person, 14 days from service of the request to file a motion for a protective order denying the identified person (a) status as a Qualified Person, or (b) access to particular Classified Information. The objecting person shall have the burden of demonstrating that disclosure to the disputed person would expose the objecting party to the risk of serious harm. Upon the timely filing of such a motion, no disclosure of Classified Information shall be made to the disputed person unless and until the Court enters an order preserving the designation.

15. Manner of Use in Proceedings and Filing Under Seal

*7 In the event a party wishes to use any Classified Information in affidavits, declarations, briefs, memoranda of law, or other papers filed in this litigation, including in any filing with the Court, the party intending to make such filing shall file a motion with the Court consistent with the Court's rules and procedures requesting that the Court permit that such document be filed under seal. The Parties hereto intend that Classified Information produced in the litigation shall not become part of the public record of the litigation, except upon further order of the Court. The parties hereto shall join in any reasonable motion that such filing be made under seal. The parties shall follow these same or similar procedures in any other court where information subject to this Order might be relevant, consistent with any rules or Orders applicable in such court.

16. Return of Documents

Not later than 120 days after conclusion of this litigation and any appeal related to it, any Classified Information, all reproductions of such information, and any notes, summaries, or descriptions of such information in the possession of any of the persons specified in paragraph 2 (except subparagraph 2(a)(iii)) shall be returned to the producing party or destroyed, except as this court may otherwise order or to the extent such information has been used as evidence at any trial or hearing. Notwithstanding this obligation to return or destroy information, counsel may retain attorney work product, including document indices, so long as that work product does not duplicate verbatim substantial portions of the text of any Classified Information.

17. Ongoing Obligations

Insofar as the provisions of this Protective Order, or any other protective orders entered in this litigation, restrict the communication and use of the information protected by it, such provisions shall continue to be binding after the conclusion of this litigation, except that (a) there shall be no restriction on documents that are used as exhibits in open court unless such exhibits were filed under seal, and (b) a party may seek the written permission of the producing party or order of the court with respect to dissolution or modification of this, or any other, protective order.

18. Advice to Clients

This order shall not bar any attorney in the course of rendering advice to such attorney's client with respect to this litigation from conveying to any party client the attorney's evaluation in a general way so long as doings so does not reveal either Classified Information produced or exchanged under the terms of this Protective Order or the substance of any of it even if the Classified Information itself is not produced; provided, however, that in rendering such advice and otherwise communicating with the client, the attorney shall not disclose the specific contents of any other producing party's Classified Information or the substance of any of it if such disclosure would be contrary to the terms of this Protective Order.

19. Duty to Ensure Compliance

Any party designating any person as a Qualified Person shall have the duty to reasonably ensure that such person observes the terms of this Protective Order and shall be responsible upon breach of such duty for the failure of such person to observe the terms of this Protective Order.

20. Waiver

The production of privileged or work-product protected documents, electronically stored information (“ESI”) or information, whether inadvertent or otherwise, is not a waiver of the privilege or protection from discovery in this case or in any other federal or state proceeding. After learning of such production, the producing party (or the party holding the privilege or protection if produced by a third party, such as an outside law firm) must promptly notify the receiving party in writing that it intends to assert privilege or other protection with regard to such production. No party to this litigation thereafter shall assert that such inadvertent disclosure alone waived any privilege or protection. Absent court order or agreement of the parties to the contrary, no use shall be made of such documents during deposition, at trial, or in any filing or motion, nor shall they be shown to anyone who was not given access to them prior to the request to return or destroy them. Any receiving party will return or destroy such inadvertently produced items and all copies within five (5) business days of receiving a written request from the producing party for the return or destruction of such items and certify such return or destruction in writing to the producing party, and provide written confirmation of compliance. The return of such items shall not be construed as an agreement by the returning party that the information is, in fact, protected by any privilege or immunity. Within seven (7) days of receiving written confirmation from any receiving party, the producing party must serve a supplemental privilege log covering the privileged or otherwise protected matter produced. The receiving party, having so returned the items, may thereafter seek production of any such documents in accordance with the Federal Rules of Civil Procedure (without asserting waiver based solely on their inadvertent production).

*8 This Order shall be interpreted to provide the maximum protection allowed by Federal Rule of Evidence 502(d). Nothing contained herein is intended to or shall serve to limit a party's right to conduct a review of documents, ESI or information (including metadata) for relevance, responsiveness and/or segregation of privileged and/or protected information before production.

21. Modification and Exceptions

The parties may, by stipulation, provide for exceptions to this order and any party may seek an order of this court modifying this Protective Order.

DONE this 29th day of September, 2022.

EXHIBIT A

COACHCOMM, LLC, Plaintiff,

v.

WESTCOM WIRELESS, INC., Defendant.

CASE NO. 3:21-CV-743-RAH-KFP

CONFIDENTIALITY AGREEMENT

I, ______________________________ represent and agree as follows:

2. I have read and know the contents of the Protective Order dated ____________________, 2022 (“Protective Order”), filed in the above entitled action, I agree to be bound by its terms and conditions, and submit myself to the jurisdiction of the United States District Court for the Middle District of Alabama relative to assuring enforcement of the terms and conditions of said Protective Order.

3. I am one of the persons described in Paragraph 2 of the Protective Order, and I am signing this Confidentiality Agreement and agreeing to enter into this Confidentiality Agreement in order to satisfy the conditions provided for in the Protective Order prior to the disclosure to me of any Classified Information as said term is defined and described in the Protective Order.

4. I expressly agree that:

I state under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.