1014-00004 · Hawthorne Vega & Cruz LLP · Correspondence

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CALDERWOOD & HARKNESS LLP

CALDERWOOD & HARKNESS LLP Attorneys at Law

350 South Grand Avenue, 48th Floor Los Angeles, California 90071

1201 F Street NW, Suite 700 Washington, DC 20004

Alan Ngo Partner, IP Litigation Group Direct: (213) 555-4820 Facsimile: (213) 555-4800

Email: ango@calderwoodharkness.com

August 14, 2024

VIA EMAIL AND U.S. MAIL

Catherine "Kate" Rourke, Esq. Hawthorne Vega & Cruz LLP 600 Congress Avenue, Suite 2400 Austin, Texas 78701

Re: Proposed Stipulated Protective Order Optiwave Semiconductor Corp. v. Lumicore Technologies, Inc. Case No. 2:24-cv-00319-JRG United States District Court for the Eastern District of Texas

Dear Kate:

I write on behalf of our client, Optiwave Semiconductor Corp. ("OWS" or "Plaintiff"), to transmit the enclosed proposed form of Stipulated Protective Order (the "Proposed Order") for your review on behalf of Lumicore Technologies, Inc. ("Lumicore" or "Defendant") in the above-captioned matter. As set forth below, the Proposed Order is designed to facilitate the efficient exchange of confidential and highly sensitive information during the course of discovery while adequately protecting the legitimate competitive interests of both parties.

As you will recall, the parties' Joint discovery Plan and Report, filed pursuant to Federal Rule of Civil Procedure 26(f) on July 29, 2024 (Dkt. No. 22), reflected the parties' mutual agreement to negotiate and submit a stipulated protective order to the Court prior to the commencement of substantive document productions. This commitment was made in recognition of the fact that the discovery in this patent infringement action will necessarily involve the exchange of commercially sensitive financial data, proprietary technical specifications, product design documentation, and source code belonging to both sides—materials that require robust protections given the directly competitive relationship between OWS and Lumicore in the silicon-photonics transceiver market.

I also note that the Court's Scheduling Order and Docket Control Order, entered by the Honorable Judge James R. Gilstrap on August 12, 2024 (Dkt. No. 27), has now established the governing case schedule. Among other deadlines, the Scheduling Order provides that fact discovery shall close on May 1, 2025, expert reports are due in accordance with a staggered schedule (opening reports by July 15, 2025, and rebuttal reports by September 15, 2025), and the case is set for trial beginning February 2, 2026. Given the volume of discovery that will be required in a case of this complexity—involving multiple accused product families, multiple asserted patent claims, and significant financial and technical data—it is imperative that a protective order be in place promptly so that the parties may begin producing documents and responding to written discovery without delay.

The enclosed draft Proposed Order reflects provisions commonly adopted in patent infringement matters litigated in the Eastern District of Texas and is consistent with the model protective order used by many courts in this district. I believe the framework set forth below provides appropriate protections for both sides. That said, I recognize that certain provisions are often the subject of negotiation between the parties, and I have flagged specific areas below where we welcome your input and any proposed modifications.

I. Overview of the Proposed Three-Tier Confidentiality Framework

The Proposed Order employs a three-tier confidentiality designation framework that is widely used in complex patent litigation and that we believe appropriately calibrates the level of access restrictions to the sensitivity of the information at issue. I summarize each tier below for your convenience.

A. Tier 1: "CONFIDENTIAL"

The first tier—designated as "CONFIDENTIAL"—applies to information that the producing party reasonably and in good faith believes constitutes confidential business information, the disclosure of which to unauthorized persons could cause competitive harm to the producing party. This tier is intended to cover the broad category of non-public business information that, while sensitive, does not rise to the level of requiring the more restrictive access limitations associated with the higher tiers.

Under the Proposed Order, materials designated as CONFIDENTIAL may be disclosed to the following categories of individuals:

(a) Outside counsel of record for each party, including the attorneys primarily responsible for the day-to-day conduct of this litigation. For OWS, this includes Alan Ngo, Marcus Delgado, Wendy Schultz, and Omar Siddiqui of Calderwood & Harkness LLP. For Lumicore, this includes Kate Rourke, Darren Cho, Samantha Briggs, and Rohan Iyer of Hawthorne Vega & Cruz LLP;

(b) Local counsel, including James "Jim" Callahan of Whitmore & Callahan LLP (for OWS) and Maria Garza of Trask Eddington LLP (for Lumicore);

(c) In-house counsel for each party who are not "Competitive Decision-Makers" (as defined in the Proposed Order and discussed further below), including Rebecca Tanaka, General Counsel of OWS, and Raymond Bautista, General Counsel of Lumicore, subject to the access limitations discussed in Section III.A below;

(d) Paralegals and litigation support staff employed by or working under the direction and supervision of outside counsel or local counsel;

(e) Retained experts and consultants who have executed the Acknowledgment and Agreement to Be Bound attached to the Proposed Order as Exhibit A; and

(f) Court personnel, including the Judge, the Judge's law clerks, court reporters, and any special master or mediator appointed by the Court.

Examples of materials that the parties might reasonably designate at this tier include general financial information (e.g., aggregate revenue and expense data not broken down by product line), non-public business strategies at a general level, customer lists presented in aggregate form, and certain internal communications that contain non-public but not competitively critical information.

B. Tier 2: "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" (AEO)

The second tier—designated as "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" or "AEO"—applies to information that the producing party reasonably and in good faith believes constitutes highly sensitive confidential business information, the disclosure of which even to in-house counsel or employees of the opposing party could result in significant competitive harm. This designation is reserved for the most commercially sensitive categories of business and technical information, including but not limited to:

• Detailed product-level financial data, including revenue, cost of goods sold, and gross margin data broken down by individual product line or product family;

• Pricing strategies, including target pricing, discount structures, and pricing models for specific customer accounts;

• Customer-specific revenue breakdowns, including revenue attributable to individual hyperscale data-center customers;

• Proprietary technical specifications that go beyond publicly available product data sheets; and

• Detailed design documentation, including engineering design files, simulation data, and test results for specific product architectures.

Under the Proposed Order, access to AEO materials is restricted to outside counsel of record, local counsel, paralegals and litigation support staff working under the direct supervision of outside counsel or local counsel, retained experts and consultants who have executed the Acknowledgment form (Exhibit A), and Court personnel. Critically, the AEO tier expressly excludes in-house counsel and any employees of the parties themselves from access, unless otherwise agreed in writing by the designating party or ordered by the Court upon a showing of good cause. I address the rationale for this default exclusion, and our willingness to discuss modifications, in Section III.A below.

The rationale for the AEO tier is straightforward and grounded in the competitive realities of this case. OWS and Lumicore are direct competitors in the silicon-photonics transceiver market. Both companies design, manufacture, and sell coherent and intensity-modulated optical transceivers targeting hyperscale data-center customers—including many of the same customers. In a market where pricing, margins, and product roadmap decisions are closely guarded competitive advantages, the disclosure of product-level financial data or detailed technical design information to employees of a direct competitor—even under a protective order—creates a risk of inadvertent competitive misuse that the AEO tier is designed to mitigate.

The relevance of the AEO tier is particularly acute with respect to the financial data that will be at the center of the damages analysis in this case. By way of example, and based on information already obtained through OWS's pre-suit investigation and publicly available financial disclosures, OWS understands that Lumicore's accused products generated significant revenue during the relevant damages period. Specifically, OWS's preliminary analysis indicates that Lumicore's FY 2023 revenue attributable to the three accused product families was approximately as follows:

• LumiLink 400G-ZR+: approximately $94.8 million in FY 2023 revenue;

• LumiLink 800G-DR8: approximately $128.4 million in FY 2023 revenue; and

• LumiEdge 1600G-LR: approximately $41.7 million in FY 2023 revenue;

for a combined total of approximately $264.9 million in FY 2023 revenue across the accused product families. The product-level revenue data, gross margin data, customer-by-customer revenue breakdowns, and average selling price data that will be produced during discovery—which will be critical to OWS's reasonable royalty and lost-profits damages analyses—are precisely the types of information that warrant AEO protection. Similarly, OWS's own competing-product financial data, including the 47.3% gross margin on OWS's competing transceiver products, will be designated at the AEO tier when produced to Lumicore.

C. Tier 3: "HIGHLY CONFIDENTIAL — SOURCE CODE"

The third and most restrictive tier—designated as "HIGHLY CONFIDENTIAL — SOURCE CODE"—applies to source code, firmware, register-transfer level ("RTL") schematics, photonic-IC layout and mask files, and related technical files that constitute the most competitively sensitive technical information of the producing party. These materials represent the crown jewels of each company's technology portfolio and require the highest level of protection.

Under the Proposed Order, access to Source Code materials is limited to:

(a) A maximum of two (2) outside counsel per side, who shall be identified by name in writing to the producing party prior to any source code review;

(b) One (1) retained technical expert per side, who shall have executed the Acknowledgment form (Exhibit A) and who shall be identified by name and curriculum vitae to the producing party no fewer than ten (10) business days prior to any scheduled source code review; and

No copying of Source Code materials is permitted, except for limited excerpts that are strictly necessary for use in court filings (including motions and briefs), expert reports, or deposition exhibits, all of which must be filed under seal in accordance with the Court's Local Rules and any applicable sealing orders.

The Source Code tier is specifically relevant to the technical heart of this case. OWS anticipates that Lumicore's photonic-IC mask files, RTL schematics, firmware source code, and fabrication run data for the accused product families—the LumiLink 400G-ZR+, LumiLink 800G-DR8, and LumiEdge 1600G-LR—will be produced at this tier during the course of discovery. These materials will be central to OWS's claim construction and infringement analysis, as the asserted claims of U.S. Patent Nos. 10,XXX,XXX and 11,XXX,XXX require a detailed comparison of the accused products' photonic-IC architectures against the claimed structures and methods. Similarly, OWS acknowledges that its own design files for the OWS-400ZR, OWS-800XR, and OWS-1600DR product families may be designated at this tier when produced in connection with Lumicore's invalidity contentions or any counterclaims.

The Proposed Order includes a detailed source code review protocol, the key terms of which are as follows:

• All source code inspections shall take place at a stand-alone, non-networked computer provided by the producing party's counsel, located either at the producing party's counsel's offices or at a mutually agreed neutral location within the Eastern District of Texas;

• The reviewing party's designated counsel and technical expert may take limited handwritten notes during the inspection, which shall themselves be treated as Source Code materials under the Proposed Order;

• No electronic copying, photographing, screen capture, or other digital reproduction of source code displays is permitted during the inspection; and

• The producing party's counsel shall have the right to have a representative present during all source code inspections to ensure compliance with the review protocol.

I address the logistics of source code review, including proposed locations and scheduling, in Section III.B below.

II. Key Provisions of the Proposed Order Highlighted for Discussion

In addition to the three-tier confidentiality framework summarized above, the Proposed Order contains a number of procedural and substantive provisions that are standard in protective orders of this type but that I wish to highlight for your review and comment.

A. Designation Procedures

Under the Proposed Order, any party may designate produced documents, deposition testimony, interrogatory responses, or other discovery materials at the appropriate confidentiality tier by stamping or labeling the materials with the relevant confidentiality legend (e.g., "CONFIDENTIAL," "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY," or "HIGHLY CONFIDENTIAL — SOURCE CODE"). For documents produced in electronic form, the designation may be applied through Bates-stamp prefixes, metadata fields, or confidentiality footer overlays on TIFF images, consistent with the ESI Protocol agreed to by the parties.

Designations may be made at the time of production or within thirty (30) days after production. This thirty-day window is intended to allow the producing party adequate time to complete its review and designation of large document productions without delaying the production itself. During the interim period before designation, all produced materials shall be treated as CONFIDENTIAL by default.

The Proposed Order requires that each designation be made on a good-faith basis and supported by a reasonable belief that the designated material qualifies for protection at the selected tier. The Proposed Order expressly discourages the bulk designation of entire productions at the highest tier and states that such practice may be grounds for a challenge under the procedures described below.

B. Challenge Procedures

The Proposed Order includes a streamlined mechanism for challenging confidentiality designations that the receiving party believes are unwarranted or over-designated. Under this procedure:

(1) The challenging party shall provide written notice to the designating party, identifying with reasonable specificity the materials at issue and the basis for the challenge (e.g., that the designated materials are publicly available, that the designated tier is higher than warranted, or that the designation lacks a good-faith basis);

(2) The designating party shall have fourteen (14) business days from receipt of the challenge notice to respond in writing. The parties shall meet and confer in good faith during this period in an effort to resolve the dispute without Court intervention;

(3) If the parties are unable to resolve the challenge, the designating party bears the burden of establishing that the challenged designation is proper. Either party may then seek relief from the Court by filing an appropriate motion; and

(4) During the pendency of any challenge, including any motion practice before the Court, the materials at issue shall remain at the designated tier until the Court orders otherwise, or until the parties agree to a different designation.

The form of Challenge Notice is attached to the Proposed Order as Exhibit B, enclosed herewith for your review.

C. Use Limitations

The Proposed Order provides that all confidential materials produced in this action—at any tier—may be used solely for purposes of this litigation (Case No. 2:24-cv-00319-JRG) and not for any business, commercial, competitive, or other purpose. This "litigation use only" restriction is a fundamental protection that ensures neither party can exploit discovery in this case for competitive advantage outside the four corners of the lawsuit.

Specifically, the Proposed Order prohibits the use of confidential materials in connection with any other litigation, licensing negotiation, patent prosecution activity, product development effort, marketing initiative, or other business activity, without the prior written consent of the designating party or an order of the Court. This restriction applies both during the pendency of the case and after its conclusion, subject to the return-or-destroy obligations discussed below.

D. Expert Access and Acknowledgment Forms

Before any retained expert or consultant may receive access to materials designated at any confidentiality tier, the Proposed Order requires that such individual execute the Acknowledgment and Agreement to Be Bound attached as Exhibit A. The Acknowledgment form requires the expert to: (i) confirm that he or she has read and understands the terms of the Protective Order; (ii) agree to be bound by its provisions; (iii) submit to the jurisdiction of the Court for purposes of enforcement; and (iv) agree not to use or disclose confidential materials for any purpose other than providing expert services in this litigation.

OWS anticipates that the following retained experts and consultants will require access to confidential and/or AEO materials during the course of this case, and we intend to have each of them execute the Acknowledgment form promptly upon entry of the Protective Order:

• Dr. Caroline Ashford, Plaintiff's Technical Expert, affiliated with the Northfield Institute of Technology, who has been retained to opine on claim construction, infringement, and validity issues;

• Dr. Lawrence Keating, Plaintiff's Damages Expert, of Meridian Economic Consulting Group, LLC, who has been retained to calculate OWS's reasonable royalty and lost-profits damages;

• Gregory Falk, Plaintiff's Industry Expert, who has been retained to provide testimony regarding industry practices, licensing norms, and the competitive landscape in the silicon-photonics transceiver market; and

• Benchmark Semiconductor Analysis, LLC (Kevin Ng, Lead Engineer), which has been retained to provide technical consulting and reverse-engineering analysis of the accused Lumicore products.

We understand that Lumicore has likewise retained experts who will require access to confidential materials, including Dr. Rajesh Sundaram of Pacific Western University and Dr. Natasha Volkov of Pinnacle Analytics Partners LLP. We anticipate that the same Acknowledgment form will apply to Lumicore's experts and consultants, and we are prepared to receive executed copies of the Acknowledgment at your convenience once the Protective Order is entered.

E. Filing Under Seal

Any party seeking to file confidential materials with the Court—whether in connection with a motion, brief, expert report, or other submission—must comply with the Court's Local Rules and any applicable sealing orders entered in this case. The Proposed Order contemplates that a separate motion to seal shall be filed whenever AEO or Source Code materials are attached to or incorporated in any court filing, and that such motion shall be accompanied by a declaration establishing the basis for sealing consistent with the standards set forth in Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978), and its progeny. Redacted versions of any sealed filings shall be filed on the public docket simultaneously.

F. Return or Destruction of Materials

Within sixty (60) days after the final resolution of this action—including the exhaustion of all appeals or the expiration of time to appeal—each receiving party must either return to the producing party or certify the destruction of all confidential materials received from the producing party during discovery. Certification of destruction shall be provided in writing by outside counsel for the receiving party and shall confirm that all copies, including electronic copies, backup copies, and copies stored on litigation support platforms (including Crestline Technologies databases), have been destroyed.

The Proposed Order includes a limited exception permitting outside counsel to retain work product that reflects or incorporates confidential information (e.g., attorney memoranda, expert report drafts, deposition summaries), provided that such work product remains subject to the ongoing confidentiality obligations of the Protective Order and may not be disclosed to anyone not authorized to receive the underlying confidential materials. This exception is standard and is intended to preserve counsel's ability to maintain their files for malpractice defense, ethical compliance, and similar purposes.

G. Prosecution Bar

The Proposed Order includes a prosecution bar provision—presented as a draft subject to discussion—that would prevent any attorney who receives access to materials designated at the AEO or Source Code tier from participating in the prosecution of patents or patent applications before the United States Patent and Trademark Office ("USPTO") that relate to the subject matter of this litigation. The proposed prosecution bar would remain in effect for a period of two (2) years following the final conclusion of this action, including all appeals.

I want to flag this provision for your particular attention, as prosecution bar provisions are frequently the subject of negotiation between parties in patent cases. The scope and duration of the bar as proposed reflect what we believe to be a reasonable and commonly adopted framework, but we are open to discussing modifications. For the avoidance of doubt, OWS's patent prosecution work is handled by Cascade IP Advisors, LLC (Dr. Martin Chu, Principal), which is an entirely separate firm from Calderwood & Harkness and has no involvement in this litigation. Accordingly, the prosecution bar as proposed would not affect our litigation team's ability to prosecute this case through trial and appeal. We understand, however, that the prosecution bar may implicate different considerations for Lumicore's counsel, and we invite you to share any concerns.

III. Specific Issues Flagged for Hawthorne Vega & Cruz's Input

While we believe the Proposed Order represents a fair and balanced framework, there are several areas where we anticipate the parties may benefit from further discussion. I have flagged these below and welcome your thoughts.

A. In-House Counsel Access Under the AEO Tier

As noted above, the Proposed Order excludes in-house counsel from access to AEO-designated materials as a default. This approach reflects the heightened risk of inadvertent competitive misuse that arises when employees of a direct competitor—even in-house attorneys—are exposed to the opposing party's most sensitive business and technical data. The risk is not theoretical: OWS and Lumicore compete head-to-head in the silicon-photonics transceiver market for hyperscale data-center customers, and both companies' general counsel occupy roles that may encompass or intersect with competitive decision-making functions.

We recognize, however, that this is a common area of negotiation and that in-house counsel access can be important for purposes of litigation management and settlement evaluation. We therefore invite you to propose any modifications to the default AEO access restrictions, including the possibility of allowing limited in-house counsel access under additional safeguards. For example, the parties could agree to permit in-house counsel access subject to the execution of an enhanced acknowledgment form and the implementation of an ethical wall or information barrier separating the in-house attorney's litigation-related activities from his or her competitive decision-making functions. We are prepared to discuss reasonable accommodations on this point.

I note, for context, that both Rebecca Tanaka, General Counsel of OWS, and Raymond Bautista, General Counsel of Lumicore, occupy senior roles within their respective organizations that may involve oversight of or participation in competitive decision-making, including product strategy, pricing, and business development. This consideration weighs in favor of the default exclusion at the AEO tier, but we recognize that the specific scope of each individual's responsibilities may inform the analysis and are prepared to discuss this further.

B. Source Code Review Logistics

We propose that all source code reviews take place either at the producing party's counsel's offices or at a mutually agreed neutral facility located within the Eastern District of Texas, which is consistent with the Court's preference for discovery activities to be conducted within the district. As a practical matter, we would suggest Tyler, Texas, as the most convenient location for a neutral review facility, given the Court's location.

We request your input on preferred locations and scheduling logistics for source code reviews. OWS anticipates that it will need access to Lumicore's source code and photonic-IC layout files at an early stage in the case, particularly in connection with OWS's infringement analysis supporting the infringement contentions that are to be served on September 16, 2024, pursuant to the Court's Patent Rules, and any supplemental infringement contentions that may be served in or around April 2025. Accordingly, we would like to begin discussing the logistics of source code review now so that the necessary arrangements can be made promptly upon entry of the Protective Order.

C. Scope of "Competitive Decision-Maker" Definition

The Proposed Order defines "Competitive Decision-Maker" as any individual who has, or has had within the preceding two (2) years, direct or supervisory responsibility for pricing, marketing, product development, or business strategy decisions relating to products that compete with the opposing party's products in the silicon-photonics transceiver market. This definition is intended to identify those individuals whose exposure to the opposing party's confidential business information would pose the greatest risk of competitive harm, and to exclude such individuals from access to AEO and Source Code materials.

We believe this definition is reasonable and consistent with the definitions adopted in other patent cases in this district and elsewhere. However, we recognize that the contours of the definition—including the two-year lookback period and the categories of decision-making responsibility covered—may warrant further discussion. We invite you to propose any modifications to the definition that you believe are appropriate, and we are happy to meet and confer on this point.

IV. Discovery Timeline and Urgency

I want to emphasize the urgency of finalizing the Proposed Protective Order. As you know, OWS's Initial Disclosures pursuant to Rule 26(a)(1) were served on August 19, 2024, and we anticipate that Lumicore's Initial Disclosures are due on the same date or shortly thereafter. Additionally, OWS's First Set of Interrogatories (25 interrogatories) and First Set of Requests for Production of Documents (85 RFPs) to Lumicore were served on August 26, 2024. Substantive document productions will need to begin in the near term, and it is essential that the Protective Order be in place before either side begins producing confidential financial or technical documents.

I also note that the parties agreed to an ESI Protocol on August 15, 2024, which specifies, among other things, that the parties will use Crestline Technologies as the primary document review platform, will employ a search-term methodology with iterative refinement for the identification of responsive documents, will produce source code in native format, and will produce all other documents in TIFF-plus-load-file format. The Proposed Protective Order is designed to complement the ESI Protocol, and the confidentiality legends and designation procedures in the Proposed Order are compatible with the production specifications set forth in the ESI Protocol.

In light of the foregoing, I respectfully request that Hawthorne Vega & Cruz provide its comments and any proposed redlines to the enclosed Proposed Order within ten (10) business days, or by approximately August 28, 2024, so that the parties can finalize the stipulation and submit the Proposed Order for Judge Gilstrap's approval before the first substantive document productions are exchanged. Our mutual goal, as reflected in the Joint discovery Plan, is to file the jointly agreed Proposed Stipulated Protective Order with the Court by August 19, 2024, or as soon thereafter as practicable. While that date is approaching quickly, I am confident that we can reach agreement on the remaining issues efficiently, and I am available to discuss any aspect of the Proposed Order by telephone or videoconference at your convenience.

V. Enclosures

Enclosed with this letter, please find the following documents for your review:

Enclosure 1: Proposed Stipulated Protective Order (clean draft) — 28 pages

Enclosure 2: Exhibit A to Proposed Order — Form of Acknowledgment and Agreement to Be Bound by the Stipulated Protective Order

Enclosure 3: Exhibit B to Proposed Order — Form of Challenge Notice

VI. Closing

Kate, I appreciate your attention to this matter and your willingness to engage cooperatively on the protective order framework. I am confident that the parties can reach agreement on a stipulated protective order that adequately protects the confidential information of both OWS and Lumicore while facilitating the efficient prosecution and defense of this case. Please do not hesitate to call me directly at (213) 555-4820, or reach me by email at ango@calderwoodharkness.com, if you would like to discuss any of the provisions outlined above or in the enclosed draft.

I have copied my colleagues Marcus Delgado and Wendy Schultz of Calderwood & Harkness LLP, as well as our local counsel, Jim Callahan of Whitmore & Callahan LLP, on this correspondence. I would encourage you to similarly include Darren Cho, Samantha Briggs, and your local counsel Maria Garza of Trask Eddington LLP in our discussions going forward so that all members of both litigation teams are aligned as we work toward finalizing the Proposed Order.

I look forward to receiving your comments and to working together to resolve the protective order framework cooperatively and without the need for Court intervention. Thank you for your time and courtesy.

Sincerely,

CALDERWOOD & HARKNESS LLP

By: ________

Alan Ngo Partner, IP Litigation Group 350 South Grand Avenue, 48th Floor Los Angeles, California 90071 California State Bar No. 287654 Admitted Pro Hac Vice, E.D. Tex.

Enclosures (3)

Enclosure 1: Proposed Stipulated Protective Order (clean draft) Enclosure 2: Exhibit A — Form of Acknowledgment and Agreement to Be Bound Enclosure 3: Exhibit B — Form of Challenge Notice

cc: (via email)

Marcus Delgado, Esq., Calderwood & Harkness LLP Wendy Schultz, Esq., Calderwood & Harkness LLP Omar Siddiqui, Esq., Calderwood & Harkness LLP James "Jim" Callahan, Esq., Whitmore & Callahan LLP, 110 North College Avenue, Suite 800, Tyler, TX 75702 Rebecca Tanaka, General Counsel, Optiwave Semiconductor Corp. Darren Cho, Esq., Hawthorne Vega & Cruz LLP (via email)

CALDERWOOD & HARKNESS LLP
CALDERWOOD & HARKNESS LLP Attorneys at Law
350 South Grand Avenue, 48th Floor Los Angeles, California 90071
1201 F Street NW, Suite 700 Washington, DC 20004
Alan Ngo Partner, IP Litigation Group Direct: (213) 555-4820 Facsimile: (213) 555-4800
Email: ango@calderwoodharkness.com
August 14, 2024
VIA EMAIL AND U.S. MAIL
Catherine "Kate" Rourke, Esq. Hawthorne Vega & Cruz LLP 600 Congress Avenue, Suite 2400 Austin, Texas 78701
Re: Proposed Stipulated Protective Order Optiwave Semiconductor Corp. v. Lumicore Technologies, Inc. Case No. 2:24-cv-00319-JRG United States District Court for the Eastern District of Texas
Dear Kate:
I write on behalf of our client, Optiwave Semiconductor Corp. ("OWS" or "Plaintiff"), to transmit the enclosed proposed form of Stipulated Protective Order (the "Proposed Order") for your review on behalf of Lumicore Technologies, Inc. ("Lumicore" or "Defendant") in the above-captioned matter. As set forth below, the Proposed Order is designed to facilitate the efficient exchange of confidential and highly sensitive information during the course of discovery while adequately protecting the legitimate competitive interests of both parties.
As you will recall, the parties' Joint discovery Plan and Report, filed pursuant to Federal Rule of Civil Procedure 26(f) on July 29, 2024 (Dkt. No. 22), reflected the parties' mutual agreement to negotiate and submit a stipulated protective order to the Court prior to the commencement of substantive document productions. This commitment was made in recognition of the fact that the discovery in this patent infringement action will necessarily involve the exchange of commercially sensitive financial data, proprietary technical specifications, product design documentation, and source code belonging to both sides—materials that require robust protections given the directly competitive relationship between OWS and Lumicore in the silicon-photonics transceiver market.
I also note that the Court's Scheduling Order and Docket Control Order, entered by the Honorable Judge James R. Gilstrap on August 12, 2024 (Dkt. No. 27), has now established the governing case schedule. Among other deadlines, the Scheduling Order provides that fact discovery shall close on May 1, 2025, expert reports are due in accordance with a staggered schedule (opening reports by July 15, 2025, and rebuttal reports by September 15, 2025), and the case is set for trial beginning February 2, 2026. Given the volume of discovery that will be required in a case of this complexity—involving multiple accused product families, multiple asserted patent claims, and significant financial and technical data—it is imperative that a protective order be in place promptly so that the parties may begin producing documents and responding to written discovery without delay.
The enclosed draft Proposed Order reflects provisions commonly adopted in patent infringement matters litigated in the Eastern District of Texas and is consistent with the model protective order used by many courts in this district. I believe the framework set forth below provides appropriate protections for both sides. That said, I recognize that certain provisions are often the subject of negotiation between the parties, and I have flagged specific areas below where we welcome your input and any proposed modifications.
I. Overview of the Proposed Three-Tier Confidentiality Framework
The Proposed Order employs a three-tier confidentiality designation framework that is widely used in complex patent litigation and that we believe appropriately calibrates the level of access restrictions to the sensitivity of the information at issue. I summarize each tier below for your convenience.
A. Tier 1: "CONFIDENTIAL"
The first tier—designated as "CONFIDENTIAL"—applies to information that the producing party reasonably and in good faith believes constitutes confidential business information, the disclosure of which to unauthorized persons could cause competitive harm to the producing party. This tier is intended to cover the broad category of non-public business information that, while sensitive, does not rise to the level of requiring the more restrictive access limitations associated with the higher tiers.
Under the Proposed Order, materials designated as CONFIDENTIAL may be disclosed to the following categories of individuals:
(a) Outside counsel of record for each party, including the attorneys primarily responsible for the day-to-day conduct of this litigation. For OWS, this includes Alan Ngo, Marcus Delgado, Wendy Schultz, and Omar Siddiqui of Calderwood & Harkness LLP. For Lumicore, this includes Kate Rourke, Darren Cho, Samantha Briggs, and Rohan Iyer of Hawthorne Vega & Cruz LLP;
(b) Local counsel, including James "Jim" Callahan of Whitmore & Callahan LLP (for OWS) and Maria Garza of Trask Eddington LLP (for Lumicore);
(c) In-house counsel for each party who are not "Competitive Decision-Makers" (as defined in the Proposed Order and discussed further below), including Rebecca Tanaka, General Counsel of OWS, and Raymond Bautista, General Counsel of Lumicore, subject to the access limitations discussed in Section III.A below;
(d) Paralegals and litigation support staff employed by or working under the direction and supervision of outside counsel or local counsel;
(e) Retained experts and consultants who have executed the Acknowledgment and Agreement to Be Bound attached to the Proposed Order as Exhibit A; and
(f) Court personnel, including the Judge, the Judge's law clerks, court reporters, and any special master or mediator appointed by the Court.
Examples of materials that the parties might reasonably designate at this tier include general financial information (e.g., aggregate revenue and expense data not broken down by product line), non-public business strategies at a general level, customer lists presented in aggregate form, and certain internal communications that contain non-public but not competitively critical information.
B. Tier 2: "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" (AEO)
The second tier—designated as "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" or "AEO"—applies to information that the producing party reasonably and in good faith believes constitutes highly sensitive confidential business information, the disclosure of which even to in-house counsel or employees of the opposing party could result in significant competitive harm. This designation is reserved for the most commercially sensitive categories of business and technical information, including but not limited to:
•  Detailed product-level financial data, including revenue, cost of goods sold, and gross margin data broken down by individual product line or product family;
•  Pricing strategies, including target pricing, discount structures, and pricing models for specific customer accounts;
•  Customer-specific revenue breakdowns, including revenue attributable to individual hyperscale data-center customers;
•  Proprietary technical specifications that go beyond publicly available product data sheets; and
•  Detailed design documentation, including engineering design files, simulation data, and test results for specific product architectures.
Under the Proposed Order, access to AEO materials is restricted to outside counsel of record, local counsel, paralegals and litigation support staff working under the direct supervision of outside counsel or local counsel, retained experts and consultants who have executed the Acknowledgment form (Exhibit A), and Court personnel. Critically, the AEO tier expressly excludes in-house counsel and any employees of the parties themselves from access, unless otherwise agreed in writing by the designating party or ordered by the Court upon a showing of good cause. I address the rationale for this default exclusion, and our willingness to discuss modifications, in Section III.A below.
The rationale for the AEO tier is straightforward and grounded in the competitive realities of this case. OWS and Lumicore are direct competitors in the silicon-photonics transceiver market. Both companies design, manufacture, and sell coherent and intensity-modulated optical transceivers targeting hyperscale data-center customers—including many of the same customers. In a market where pricing, margins, and product roadmap decisions are closely guarded competitive advantages, the disclosure of product-level financial data or detailed technical design information to employees of a direct competitor—even under a protective order—creates a risk of inadvertent competitive misuse that the AEO tier is designed to mitigate.
The relevance of the AEO tier is particularly acute with respect to the financial data that will be at the center of the damages analysis in this case. By way of example, and based on information already obtained through OWS's pre-suit investigation and publicly available financial disclosures, OWS understands that Lumicore's accused products generated significant revenue during the relevant damages period. Specifically, OWS's preliminary analysis indicates that Lumicore's FY 2023 revenue attributable to the three accused product families was approximately as follows:
•  LumiLink 400G-ZR+: approximately $94.8 million in FY 2023 revenue;
•  LumiLink 800G-DR8: approximately $128.4 million in FY 2023 revenue; and
•  LumiEdge 1600G-LR: approximately $41.7 million in FY 2023 revenue;
for a combined total of approximately $264.9 million in FY 2023 revenue across the accused product families. The product-level revenue data, gross margin data, customer-by-customer revenue breakdowns, and average selling price data that will be produced during discovery—which will be critical to OWS's reasonable royalty and lost-profits damages analyses—are precisely the types of information that warrant AEO protection. Similarly, OWS's own competing-product financial data, including the 47.3% gross margin on OWS's competing transceiver products, will be designated at the AEO tier when produced to Lumicore.
C. Tier 3: "HIGHLY CONFIDENTIAL — SOURCE CODE"
The third and most restrictive tier—designated as "HIGHLY CONFIDENTIAL — SOURCE CODE"—applies to source code, firmware, register-transfer level ("RTL") schematics, photonic-IC layout and mask files, and related technical files that constitute the most competitively sensitive technical information of the producing party. These materials represent the crown jewels of each company's technology portfolio and require the highest level of protection.
Under the Proposed Order, access to Source Code materials is limited to:
(a) A maximum of two (2) outside counsel per side, who shall be identified by name in writing to the producing party prior to any source code review;
(b) One (1) retained technical expert per side, who shall have executed the Acknowledgment form (Exhibit A) and who shall be identified by name and curriculum vitae to the producing party no fewer than ten (10) business days prior to any scheduled source code review; and
(c) Court personnel, as necessary for proceedings before the Court.
No copying of Source Code materials is permitted, except for limited excerpts that are strictly necessary for use in court filings (including motions and briefs), expert reports, or deposition exhibits, all of which must be filed under seal in accordance with the Court's Local Rules and any applicable sealing orders.
The Source Code tier is specifically relevant to the technical heart of this case. OWS anticipates that Lumicore's photonic-IC mask files, RTL schematics, firmware source code, and fabrication run data for the accused product families—the LumiLink 400G-ZR+, LumiLink 800G-DR8, and LumiEdge 1600G-LR—will be produced at this tier during the course of discovery. These materials will be central to OWS's claim construction and infringement analysis, as the asserted claims of U.S. Patent Nos. 10,XXX,XXX and 11,XXX,XXX require a detailed comparison of the accused products' photonic-IC architectures against the claimed structures and methods. Similarly, OWS acknowledges that its own design files for the OWS-400ZR, OWS-800XR, and OWS-1600DR product families may be designated at this tier when produced in connection with Lumicore's invalidity contentions or any counterclaims.
The Proposed Order includes a detailed source code review protocol, the key terms of which are as follows:
•  All source code inspections shall take place at a stand-alone, non-networked computer provided by the producing party's counsel, located either at the producing party's counsel's offices or at a mutually agreed neutral location within the Eastern District of Texas;
•  The reviewing party's designated counsel and technical expert may take limited handwritten notes during the inspection, which shall themselves be treated as Source Code materials under the Proposed Order;
•  No electronic copying, photographing, screen capture, or other digital reproduction of source code displays is permitted during the inspection; and
•  The producing party's counsel shall have the right to have a representative present during all source code inspections to ensure compliance with the review protocol.
I address the logistics of source code review, including proposed locations and scheduling, in Section III.B below.
II. Key Provisions of the Proposed Order Highlighted for Discussion
In addition to the three-tier confidentiality framework summarized above, the Proposed Order contains a number of procedural and substantive provisions that are standard in protective orders of this type but that I wish to highlight for your review and comment.
A. Designation Procedures
Under the Proposed Order, any party may designate produced documents, deposition testimony, interrogatory responses, or other discovery materials at the appropriate confidentiality tier by stamping or labeling the materials with the relevant confidentiality legend (e.g., "CONFIDENTIAL," "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY," or "HIGHLY CONFIDENTIAL — SOURCE CODE"). For documents produced in electronic form, the designation may be applied through Bates-stamp prefixes, metadata fields, or confidentiality footer overlays on TIFF images, consistent with the ESI Protocol agreed to by the parties.
Designations may be made at the time of production or within thirty (30) days after production. This thirty-day window is intended to allow the producing party adequate time to complete its review and designation of large document productions without delaying the production itself. During the interim period before designation, all produced materials shall be treated as CONFIDENTIAL by default.
The Proposed Order requires that each designation be made on a good-faith basis and supported by a reasonable belief that the designated material qualifies for protection at the selected tier. The Proposed Order expressly discourages the bulk designation of entire productions at the highest tier and states that such practice may be grounds for a challenge under the procedures described below.
B. Challenge Procedures
The Proposed Order includes a streamlined mechanism for challenging confidentiality designations that the receiving party believes are unwarranted or over-designated. Under this procedure:
(1) The challenging party shall provide written notice to the designating party, identifying with reasonable specificity the materials at issue and the basis for the challenge (e.g., that the designated materials are publicly available, that the designated tier is higher than warranted, or that the designation lacks a good-faith basis);
(2) The designating party shall have fourteen (14) business days from receipt of the challenge notice to respond in writing. The parties shall meet and confer in good faith during this period in an effort to resolve the dispute without Court intervention;
(3) If the parties are unable to resolve the challenge, the designating party bears the burden of establishing that the challenged designation is proper. Either party may then seek relief from the Court by filing an appropriate motion; and
(4) During the pendency of any challenge, including any motion practice before the Court, the materials at issue shall remain at the designated tier until the Court orders otherwise, or until the parties agree to a different designation.
The form of Challenge Notice is attached to the Proposed Order as Exhibit B, enclosed herewith for your review.
C. Use Limitations
The Proposed Order provides that all confidential materials produced in this action—at any tier—may be used solely for purposes of this litigation (Case No. 2:24-cv-00319-JRG) and not for any business, commercial, competitive, or other purpose. This "litigation use only" restriction is a fundamental protection that ensures neither party can exploit discovery in this case for competitive advantage outside the four corners of the lawsuit.
Specifically, the Proposed Order prohibits the use of confidential materials in connection with any other litigation, licensing negotiation, patent prosecution activity, product development effort, marketing initiative, or other business activity, without the prior written consent of the designating party or an order of the Court. This restriction applies both during the pendency of the case and after its conclusion, subject to the return-or-destroy obligations discussed below.
D. Expert Access and Acknowledgment Forms
Before any retained expert or consultant may receive access to materials designated at any confidentiality tier, the Proposed Order requires that such individual execute the Acknowledgment and Agreement to Be Bound attached as Exhibit A. The Acknowledgment form requires the expert to: (i) confirm that he or she has read and understands the terms of the Protective Order; (ii) agree to be bound by its provisions; (iii) submit to the jurisdiction of the Court for purposes of enforcement; and (iv) agree not to use or disclose confidential materials for any purpose other than providing expert services in this litigation.
OWS anticipates that the following retained experts and consultants will require access to confidential and/or AEO materials during the course of this case, and we intend to have each of them execute the Acknowledgment form promptly upon entry of the Protective Order:
•  Dr. Caroline Ashford, Plaintiff's Technical Expert, affiliated with the Northfield Institute of Technology, who has been retained to opine on claim construction, infringement, and validity issues;
•  Dr. Lawrence Keating, Plaintiff's Damages Expert, of Meridian Economic Consulting Group, LLC, who has been retained to calculate OWS's reasonable royalty and lost-profits damages;
•  Gregory Falk, Plaintiff's Industry Expert, who has been retained to provide testimony regarding industry practices, licensing norms, and the competitive landscape in the silicon-photonics transceiver market; and
•  Benchmark Semiconductor Analysis, LLC (Kevin Ng, Lead Engineer), which has been retained to provide technical consulting and reverse-engineering analysis of the accused Lumicore products.
We understand that Lumicore has likewise retained experts who will require access to confidential materials, including Dr. Rajesh Sundaram of Pacific Western University and Dr. Natasha Volkov of Pinnacle Analytics Partners LLP. We anticipate that the same Acknowledgment form will apply to Lumicore's experts and consultants, and we are prepared to receive executed copies of the Acknowledgment at your convenience once the Protective Order is entered.
E. Filing Under Seal
Any party seeking to file confidential materials with the Court—whether in connection with a motion, brief, expert report, or other submission—must comply with the Court's Local Rules and any applicable sealing orders entered in this case. The Proposed Order contemplates that a separate motion to seal shall be filed whenever AEO or Source Code materials are attached to or incorporated in any court filing, and that such motion shall be accompanied by a declaration establishing the basis for sealing consistent with the standards set forth in Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978), and its progeny. Redacted versions of any sealed filings shall be filed on the public docket simultaneously.
F. Return or Destruction of Materials
Within sixty (60) days after the final resolution of this action—including the exhaustion of all appeals or the expiration of time to appeal—each receiving party must either return to the producing party or certify the destruction of all confidential materials received from the producing party during discovery. Certification of destruction shall be provided in writing by outside counsel for the receiving party and shall confirm that all copies, including electronic copies, backup copies, and copies stored on litigation support platforms (including Crestline Technologies databases), have been destroyed.
The Proposed Order includes a limited exception permitting outside counsel to retain work product that reflects or incorporates confidential information (e.g., attorney memoranda, expert report drafts, deposition summaries), provided that such work product remains subject to the ongoing confidentiality obligations of the Protective Order and may not be disclosed to anyone not authorized to receive the underlying confidential materials. This exception is standard and is intended to preserve counsel's ability to maintain their files for malpractice defense, ethical compliance, and similar purposes.
G. Prosecution Bar
The Proposed Order includes a prosecution bar provision—presented as a draft subject to discussion—that would prevent any attorney who receives access to materials designated at the AEO or Source Code tier from participating in the prosecution of patents or patent applications before the United States Patent and Trademark Office ("USPTO") that relate to the subject matter of this litigation. The proposed prosecution bar would remain in effect for a period of two (2) years following the final conclusion of this action, including all appeals.
I want to flag this provision for your particular attention, as prosecution bar provisions are frequently the subject of negotiation between parties in patent cases. The scope and duration of the bar as proposed reflect what we believe to be a reasonable and commonly adopted framework, but we are open to discussing modifications. For the avoidance of doubt, OWS's patent prosecution work is handled by Cascade IP Advisors, LLC (Dr. Martin Chu, Principal), which is an entirely separate firm from Calderwood & Harkness and has no involvement in this litigation. Accordingly, the prosecution bar as proposed would not affect our litigation team's ability to prosecute this case through trial and appeal. We understand, however, that the prosecution bar may implicate different considerations for Lumicore's counsel, and we invite you to share any concerns.
III. Specific Issues Flagged for Hawthorne Vega & Cruz's Input
While we believe the Proposed Order represents a fair and balanced framework, there are several areas where we anticipate the parties may benefit from further discussion. I have flagged these below and welcome your thoughts.
A. In-House Counsel Access Under the AEO Tier
As noted above, the Proposed Order excludes in-house counsel from access to AEO-designated materials as a default. This approach reflects the heightened risk of inadvertent competitive misuse that arises when employees of a direct competitor—even in-house attorneys—are exposed to the opposing party's most sensitive business and technical data. The risk is not theoretical: OWS and Lumicore compete head-to-head in the silicon-photonics transceiver market for hyperscale data-center customers, and both companies' general counsel occupy roles that may encompass or intersect with competitive decision-making functions.
We recognize, however, that this is a common area of negotiation and that in-house counsel access can be important for purposes of litigation management and settlement evaluation. We therefore invite you to propose any modifications to the default AEO access restrictions, including the possibility of allowing limited in-house counsel access under additional safeguards. For example, the parties could agree to permit in-house counsel access subject to the execution of an enhanced acknowledgment form and the implementation of an ethical wall or information barrier separating the in-house attorney's litigation-related activities from his or her competitive decision-making functions. We are prepared to discuss reasonable accommodations on this point.
I note, for context, that both Rebecca Tanaka, General Counsel of OWS, and Raymond Bautista, General Counsel of Lumicore, occupy senior roles within their respective organizations that may involve oversight of or participation in competitive decision-making, including product strategy, pricing, and business development. This consideration weighs in favor of the default exclusion at the AEO tier, but we recognize that the specific scope of each individual's responsibilities may inform the analysis and are prepared to discuss this further.
B. Source Code Review Logistics
We propose that all source code reviews take place either at the producing party's counsel's offices or at a mutually agreed neutral facility located within the Eastern District of Texas, which is consistent with the Court's preference for discovery activities to be conducted within the district. As a practical matter, we would suggest Tyler, Texas, as the most convenient location for a neutral review facility, given the Court's location.
We request your input on preferred locations and scheduling logistics for source code reviews. OWS anticipates that it will need access to Lumicore's source code and photonic-IC layout files at an early stage in the case, particularly in connection with OWS's infringement analysis supporting the infringement contentions that are to be served on September 16, 2024, pursuant to the Court's Patent Rules, and any supplemental infringement contentions that may be served in or around April 2025. Accordingly, we would like to begin discussing the logistics of source code review now so that the necessary arrangements can be made promptly upon entry of the Protective Order.
C. Scope of "Competitive Decision-Maker" Definition
The Proposed Order defines "Competitive Decision-Maker" as any individual who has, or has had within the preceding two (2) years, direct or supervisory responsibility for pricing, marketing, product development, or business strategy decisions relating to products that compete with the opposing party's products in the silicon-photonics transceiver market. This definition is intended to identify those individuals whose exposure to the opposing party's confidential business information would pose the greatest risk of competitive harm, and to exclude such individuals from access to AEO and Source Code materials.
We believe this definition is reasonable and consistent with the definitions adopted in other patent cases in this district and elsewhere. However, we recognize that the contours of the definition—including the two-year lookback period and the categories of decision-making responsibility covered—may warrant further discussion. We invite you to propose any modifications to the definition that you believe are appropriate, and we are happy to meet and confer on this point.
IV. Discovery Timeline and Urgency
I want to emphasize the urgency of finalizing the Proposed Protective Order. As you know, OWS's Initial Disclosures pursuant to Rule 26(a)(1) were served on August 19, 2024, and we anticipate that Lumicore's Initial Disclosures are due on the same date or shortly thereafter. Additionally, OWS's First Set of Interrogatories (25 interrogatories) and First Set of Requests for Production of Documents (85 RFPs) to Lumicore were served on August 26, 2024. Substantive document productions will need to begin in the near term, and it is essential that the Protective Order be in place before either side begins producing confidential financial or technical documents.
I also note that the parties agreed to an ESI Protocol on August 15, 2024, which specifies, among other things, that the parties will use Crestline Technologies as the primary document review platform, will employ a search-term methodology with iterative refinement for the identification of responsive documents, will produce source code in native format, and will produce all other documents in TIFF-plus-load-file format. The Proposed Protective Order is designed to complement the ESI Protocol, and the confidentiality legends and designation procedures in the Proposed Order are compatible with the production specifications set forth in the ESI Protocol.
In light of the foregoing, I respectfully request that Hawthorne Vega & Cruz provide its comments and any proposed redlines to the enclosed Proposed Order within ten (10) business days, or by approximately August 28, 2024, so that the parties can finalize the stipulation and submit the Proposed Order for Judge Gilstrap's approval before the first substantive document productions are exchanged. Our mutual goal, as reflected in the Joint discovery Plan, is to file the jointly agreed Proposed Stipulated Protective Order with the Court by August 19, 2024, or as soon thereafter as practicable. While that date is approaching quickly, I am confident that we can reach agreement on the remaining issues efficiently, and I am available to discuss any aspect of the Proposed Order by telephone or videoconference at your convenience.
V. Enclosures
Enclosed with this letter, please find the following documents for your review:
Enclosure 1: Proposed Stipulated Protective Order (clean draft) — 28 pages
Enclosure 2: Exhibit A to Proposed Order — Form of Acknowledgment and Agreement to Be Bound by the Stipulated Protective Order
Enclosure 3: Exhibit B to Proposed Order — Form of Challenge Notice
VI. Closing
Kate, I appreciate your attention to this matter and your willingness to engage cooperatively on the protective order framework. I am confident that the parties can reach agreement on a stipulated protective order that adequately protects the confidential information of both OWS and Lumicore while facilitating the efficient prosecution and defense of this case. Please do not hesitate to call me directly at (213) 555-4820, or reach me by email at ango@calderwoodharkness.com, if you would like to discuss any of the provisions outlined above or in the enclosed draft.
I have copied my colleagues Marcus Delgado and Wendy Schultz of Calderwood & Harkness LLP, as well as our local counsel, Jim Callahan of Whitmore & Callahan LLP, on this correspondence. I would encourage you to similarly include Darren Cho, Samantha Briggs, and your local counsel Maria Garza of Trask Eddington LLP in our discussions going forward so that all members of both litigation teams are aligned as we work toward finalizing the Proposed Order.
I look forward to receiving your comments and to working together to resolve the protective order framework cooperatively and without the need for Court intervention. Thank you for your time and courtesy.
Sincerely,
CALDERWOOD & HARKNESS LLP
By: ________
Alan Ngo Partner, IP Litigation Group 350 South Grand Avenue, 48th Floor Los Angeles, California 90071 California State Bar No. 287654 Admitted Pro Hac Vice, E.D. Tex.
Enclosures (3)
Enclosure 1: Proposed Stipulated Protective Order (clean draft) Enclosure 2: Exhibit A — Form of Acknowledgment and Agreement to Be Bound Enclosure 3: Exhibit B — Form of Challenge Notice
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Marcus Delgado, Esq., Calderwood & Harkness LLP Wendy Schultz, Esq., Calderwood & Harkness LLP Omar Siddiqui, Esq., Calderwood & Harkness LLP James "Jim" Callahan, Esq., Whitmore & Callahan LLP, 110 North College Avenue, Suite 800, Tyler, TX 75702 Rebecca Tanaka, General Counsel, Optiwave Semiconductor Corp. Darren Cho, Esq., Hawthorne Vega & Cruz LLP (via email)

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