Opinion
Civil Action No. 10-cv-03013-PAB-KLM.
November 1, 2011
E. Robert Yoches Edward J. Naidich, Sherry X. Wu, FINNEGAN, HENDERSON, FARABOW, GARRETT DUNNER, LLP, Washington, DC, Joseph E. Palys, Michael Young, Reston, VA, Charles Goldberg, Scott Browning, Trevor Bartel, ROTHGERBER JOHNSON LYONS LLP, Denver, Colorado, Attorneys for Plaintiff BIAX Corporation .
ORDER
This matter is before the Court on Plaintiff's oral Motion to Compel and Defendant Hewlett-Packard Company's ("HP") oral Motion for Protective Order relating to Plaintiffs designation of Dr. Shahid Bokhari as an expert witness in this case (the "Motions"). The Court heard oral argument on the Motions on October 27, 2011. Docket No. 206. For the reasons set forth below, Defendant Hewlett-Packard Company's oral Motion for Protective Order is granted in part. Plaintiff's oral Motion to Compel is granted in part. Except as set forth below, the Motions are otherwise denied.
I. Background
Pursuant to my discovery dispute procedures, this matter was handled by the parties' submissions of relevant information in advance of the hearing held on October 27, 2011. I considered the following information provided by the parties: "BIAX's Statement of Discovery Dispute With HP" with attached exhibits (attached in pertinent part to this Order as Attachment A) and a letter from counsel for Defendant HP to the court dated October 24, 2011 with attached exhibits (attached in pertinent part to this Order as Attachment B). I have also considered applicable case law and am fully advised in the premises.This is a patent infringement action. Plaintiff, the assignee of two patents, alleges that Defendant HP has infringed and continues to infringe one or more claims of the patents by making and selling products that use multiple condition code registers, like printers. According to HP, "the accused HP products often incorporate or integrate third party technology or components. Because of this, HP has in its possession, custody or control third party confidential information in the form of documents and source code." Attachment B at 2.
Pursuant to a Preliminary Scheduling Order entered by the Court on May 5, 2011, each Defendant, including HP, agreed to produce documents including source code. Docket No. 128 at 20. The deadline for HP to produce its source code was eventually extended to September 14, 2011. Docket No. 189. On October 3, 2011, Plaintiff notified HP that its technical expert, Dr. Bokhari, would inspect HP's source code during the weeks of October 17 and 24, 2011.
The Court entered a stipulated Protective Order in this matter on June 1, 2011 [Docket No. 146], and an Amended Protective Order on October 3, 2011 [Docket No. 200]. The Amended Protective Order contains a number of provisions designed "to adequately protect information the parties are entitled to keep confidential." [#200] at 1. The Amended Protective Order also includes provisions designed to insure that expert witnesses retained by the parties respect the confidentiality of information produced in the litigation. Id. at 7-10. However, apparently due to an oversight, the Amended Protective Order does not contain provisions which allow for notice and objection when confidential information is produced from or by a third-party.
HP objected to Dr. Bokhari's proposed source code inspection. Ultimately, HP contended that it would not produce its source code without additional agreed-upon protections for third-party confidential information. HP further demanded that Dr. Bokhari agree to additional assurances limiting his ability to work for non-practicing entities or to perform work adverse to HP for a period of years after trial of this case. Attachment B at
4. The Motions followed.
Plaintiff seeks an order compelling HP to make its source code available for Dr. Bokhari's inspection and to produce technical documentation for its accused infringing products. Attachment A at 2. HP seeks a protective order denying Dr. Bokhari access to HP confidential information unless he agrees to additional assurances which HP contends will adequately protect its confidential information. HP further seeks further amendment of the Amended Protective Order to include protection for confidential information produced by or from third parties. Attachment B at 6.
II. Analysis
HP's obligation to produce its source code and technical documentation is beyond dispute. Not only have the parties agreed to their production, but HP has failed to assert any argument against their production. The source code and technical documentation are relevant to the subject matter of the litigation and properly discoverable. See Fed.R.Civ.P. 26(b)(1); see also [#128] at 20 (the parties' agreement to produce source code, in addition to other forms of code, and certain technical documentation).
As indicated above, HP requests that the Court require Dr. Bokhari to provide additional assurances before he can review its source code. HP asks the Court to add provisions to the Amended Protective Order that require Dr. Bokhari to attest that he is not "working for any entity in a capacity of reviewing patents or products, services, or targets for non-practicing entities, other than as related to this litigation," and that he will not do so for four years after trial of this lawsuit. Attachment B at 4. HP further requests that Dr. Bokhari promise "not to perform any work related to the prosecution of a patent directed to or related to the field of computer processor architecture for a period of four years following trial," and "not to perform any work adverse to HP for a period of three years following trial." Id.
The breadth and scope of these proposed "assurances" is stunning. In essence, HP asks that in exchange for being permitted to work as an expert for the opposing party in a patent infringement lawsuit, the expert agree not to do any work on patents in the field for four years after trial. Setting aside the arrogance of the request, HP has failed to sufficiently explain why these assurances are needed to protect its confidential information. Aside from general malaise relating to the likelihood that Dr. Bokhari's involvement will lead to more litigation between Plaintiff BIAX and HP ("Dr. Bokhari has analyzed patents and products to identify targets for patent infringement lawsuits . . . [and] Dr. Bokhari's consultations can grow into lawsuits where he is rehired"), HP has failed to identify a meaningful basis for preventing Dr. Bokhari from working as an expert witness for four years aftertrial. The assurances sought by HP require unprecedented judicial interference in selection and employment of individuals who accept work as expert witnesses. Although it may be entirely appropriate for the parties to agree to such limitations depending on the case at issue, it is not appropriate for the Court to impose them. The limitations are too stiff and the parties did not freely negotiate them, despite their negotiation of a 35-page Amended Protective Order which contains specific provisions relating to expert witnesses' promises regarding use of confidential information. [#200] at 8-10.
HP's desire to restrict Dr. Bokhari's right to work in his chosen profession because he will be exposed to HP's source code is unduly prejudicial both to Dr. Bokhari and to Plaintiff. See generally BASF Corp. v. United States, 321 F. Supp. 2d 1373, 1378 (Ct. Int'l Trade 2004) (identifying test balancing the interest of a party in selecting its own third-party consultant against the opposing party's interest in protecting confidential commercial information). Imposition of conditions that would limit an expert witness' ability to work may be inappropriate for a number of reasons, not the least of which is the law's general preference against such restrictions. E.g., Colo. Rev. Stat. § 8-2-113(2) (addressing validity of covenants not to compete). Moreover, the effect of imposing such conditions on expert witnesses may not only deprive a party of its chosen expert, but may also seriously limit the available pool of expert witnesses, in contradiction to Fed.R.Civ.P. 1 and the purposes of the American civil justice system. See English Feedlot, Inc. v. Norden Labs., Inc., 833 F. Supp. 1498, 1504-05 (D. Colo. 1993) (The courts should ensure "that parties have access to expert witnesses who possess specialized knowledge and allow [] experts to pursue their professional calling.").
The Court balances Plaintiff's strong interest in selecting an appropriate expert against HP's interest in protecting confidential information. As stated above, HP's argument that Dr. Bokhari's work may lead to other litigation is unavailing. The same may be said of experts in products liability, medical malpractice and securities fraud litigation, for example, and the restrictions sought by HP are unknown in those types of cases. HP's mistrust of Dr. Bokhari because of his previous work history is hardly uncommon, and simply does not warrant the relief sought here. Although HP's confidential information is entitled to protection, HP's interest in protecting it by the means advocated here is outweighed by Plaintiffs interest in selecting an appropriate expert.
Finally, HP's interest in protecting third parties' confidential information can be met without undermining Plaintiff's interest in selecting an expert who meets its needs. HP tendered specific language to modify the Amended Protective Order to provide protections for confidential information which is produced from or by a third-party. Attachment B at 7. Neither Plaintiff nor any other party has objected to HP's request to add provisions to the Amended Protective Order to provide for notice and objections to production of confidential information by or from third parties. Plaintiff's specific objections to the proposed language relate to which party will bear the burden of notifying third parties regarding use of an expert to review their confidential information, and the length of time allowed for the notice and objections contemplated by the proposed language. To the extent that these objections have merit, they are addressed in the language ordered below. Accordingly,
IT IS HEREBY ORDERED as follows:
The Amended Protective Order [#200] is modified by insertion of the following language:
18-1. Notice of Production of Confidential Information of Others. Because a Designating Party's Designated Materials may contain another person or entity's Confidential Information under this Protective Order (including non-parties), within five (5) calendar days from receipt of the notice specified in Paragraph 18, a Designating Party shall notify a Receiving Party by e-mail transmission of any other person or entity whose Confidential Information is contained within the materials and information that have been produced by the Designating Party. Any notice under this provision must contain the following information for each person or entity in question: (1) his/her/its name, and if he/she/it is not a party, (2) his/her/its contact information, including e-mail address and telephone number.
18-2. Notice to Other Parties. Within five (5) business days after receipt of notice pursuant to Paragraph 18-1, the Receiving Party shall provide notice to all disclosed parties of the Outside Consultant, which notice shall include: (a) the Outside Consultant's name and business title; (b) business address; (c) business or profession; (d) CV; (e) any previous or current relationship (personal or professional) with any of the parties; (f) a list of other cases in which the individual has testified (at trial or deposition) within the last four years; (g) a list of all companies with which the individual has consulted or by which the individual has been employed within the last four years; (h) a list of all of the individual's pending patent applications and issued patents involving microprocessors, and (i) a signed copy of the "Acknowledgment and Agreement To Be Bound By Protective Order," attached hereto as Exhibit A, and the "Certification of Consultant," attached hereto as Exhibit B.
19-1. Objections By Others. Any person or entity possessing confidential information who receives notice pursuant to Paragraph 18-2 shall have five (5) business days from receipt of the notice to object by e-mail transmission to disclosure of its confidential information. Any such objection must set forth in detail the grounds on which it is based. If no objection is made within the five (5)-business-day period, then Designated Material may be disclosed to the Outside Consultant pursuant to the terms of this Order. However, if any objection is timely made, the Receiving Party may not disclose the objecting party's confidential information to the Outside Consultant absent resolution of the dispute or Court order. If an objection is timely made, the objecting party and the Receiving Party shall meet and confer in an attempt to resolve the matter. If a resolution is not reached, the objecting party may, within five (5) business days following its objection, initiate a conference call to the Court pursuant to Magistrate Judge Mix's discovery procedures to seek a protective order preventing disclosure of the confidential information to the Outside Consultant or other appropriate relief. If the objecting party fails to initiate a conference call within the prescribed period, any objection to the Outside Consultant is waived, and Designated Material may thereafter be disclosed to the Outside Consultant upon execution of Exhibits A and B. If the objecting party timely initiates a conference call, Designated Material shall not be disclosed to the Outside Consultant except pursuant to Court order or by consent of the objecting party, whichever occurs first.
IT IS FURTHER ORDERED that the Order issued July 13, 2011 [#174] is modified as follows:
MARKMAN SCHEDULE
MATTER DATE Markman Markman
HP shall produce information set forth in section 6(f)(4)(a) of the Preliminary Scheduling Order [#128] 11/4/11 The parties shall exchange terms to be construed 11/14/11 The parties shall exchange proposed constructions 11/28/11 The parties shall exchange joint claim construction statements 12/16/11 The parties shall file simultaneous opening briefs 1/13/12 The parties shall file simultaneous responsive briefs 2/17/12 Dated: November 1, 2011BIAX'S STATEMENT OF DISCOVERY DISPUTE WITH HP
BIAX respectfully moves the Court to order Defendant Hewlett-Packard Company ("HP") to comply with the Preliminary Scheduling Order by: (i) making its source code available for inspection by BIAX's technical expert; and (ii) producing its technical documentation such as programming guides, design documents, and instruction set architectures for its accused infringing products by next week. HP's demand that BIAX agree to lengthy new Protective Order provisions before HP provides the discovery required by the Scheduling Order is unwarranted and untimely. BIAX is highly prejudiced by HP's delay because the parties are required to exchange proposed claim constructions on November 4.I. FACTS
On August 30, 2011, the Court's Preliminary Scheduling Order required all Defendants to produce or make available documents showing the operation of their accused instrumentalities, including source code, programming guides, and instruction set architectures. (Dkt. 128, at § 6.f.4(a).) The Court granted HP's unopposed motion for a two week extension of that deadline to September 14. (Dkt. 187, 186.)
On October 3, BIAX notified HP that it wanted to have its technical expert, Dr. Bokhari, inspect HP's source code during the weeks of October 17 and 24. BIAX accordingly provided HP with a copy of Dr. Bokhari's CV and a list of companies for which he had consulted within the last four years. (Ex. 1, 10/3/11 Letter; Ex. 2, Dr. Bokhari's CV.) In accordance with the Protective Order ("PO"), BIAX also provided certifications signed by Dr. Bokhari in which he agreed (i) to be bound by the PO; (ii) to be subject to the authority of this Court in the event of a violation of the PO; (iii) to restrict his use of any confidential information just for the purposes of this litigation; and (iv) to cease reviewing confidential materials if he ever became employed by a competitor of HP. (Ex. 3; Dkt. 146, PO, ¶ 18.)
Over the next two weeks, HP then sent BIAX a series of constantly changing objections to Dr. Bokhari and reasons why HP was unwilling to produce its source code and technical documentation for its accused infringing products. For example, on October 3, HP requested that BIAX provide additional information about the companies for which Dr. Bokhari had consulted. BIAX then provided this information to HP. (Exs. 4-5.)
On October 10, HP then asked for additional details about one of Dr. Bokhari's consulting projects. (Ex. 6.) In response, BIAX notified HP that the consulting project was performed for the law firm Williams, Morgan, Amerson ("the Williams firm"), and that the work Dr. Bokhari performed was entirely based on publicly-available information. (Ex. 7.) Dr. Bokhari did not know the name of the Williams firm's underlying client for this project, and the William's firm was not willing to disclose that information. HP then raised new issues. This time, HP asked questions about consulting projects that Dr. Bokhari performed for the Qatar Research Foundation and for Eric Albritton, which BIAX addressed. (Exs. 8-9.) HP then raised yet another new set of objections, which BIAX also addressed. (Exs. 10-11.)
On October 13, HP then raised yet another new objection. This time, HP asked for the first time that BIAX notify eight different third parties and give them an opportunity to object, including ARM, MIPS, Freescale, Motorola, LSI Logic, Renesas, Marvell, and PMC-Sierra. (Ex. 12.) During a meet and confer, HP also informed BIAX that it had withheld producing technical documents for its accused products such as programming guides and design documents on the grounds that those documents contained third-party confidential information.
On October 18, HP then agreed to allow Dr. Bokhari to review its source code only if BIAX agreed to a proposed revision to the Protective Order that included roughly 3 pages of new third-party notice provisions, which would have the effect of delaying HP's production of source code and technical documents potentially by several months. (Ex. 13, 10/18 email; Ex. 14, HP's proposed amended Protective Order at pp. 8-11.) HP also asked that Dr. Bokhari agree to a "Draft Assurance," which included a requirement that he not work for "non-practicing entities" and not perform any work adverse to HP for three years following trial in this case. (Ex. 13.) At this point, because BIAX had not been able to mutually resolve HP's continuing series of new objections after two weeks of conferring with HP, BIAX sought the assistance of the Court in resolving this dispute.
II. ARGUMENT
HP has offered a series of changing objections to avoid producing its source code and technical documentation for its accused products. The only remaining dispute is that HP will not produce its code or technical documentation such as programming guides and design documents until: (i) BIAX and the other Defendants agree to, and the Court approves, several pages of HP's new proposed changes to the Protective Order relating to notification of third parties; (ii) BIAX notifies a list of third parties identified by HP and waits weeks if not months to resolve objections by those third parties; and (iii) Dr. Bokhari agrees to HP's "Draft Assurance," which imposes additional requirements beyond those in the Protective Order, such as an agreement not to work for any "non-practicing entities" or to be adverse to HP in other cases. (Exs. 13-14.)
HP's demand that BIAX agree to several new pages of Protective Order provisions at this stage in the case is highly prejudicial to BIAX. All of the parties in this case (including all six Defendant groups) spent weeks negotiating the terms of the Protective Order and submitted an agreed Protective Order to the Court in May 2011. (Dkt. 141, 145-146.) The parties also all agreed to several minor amendments to the Protective Order to address issues raised by third-party PMC, which the Court entered on October 3. (Dkt. 195, 199-200.) At no time until October 18 did HP ever raise any additional concerns about the Protective Order.
The Court's scheduling order in this case is based on local patent rules in other districts and is structured with a specific purpose: it requires all parties to produce relevant documents and disclosures prior to exchanging their proposed claim constructions. In accordance with this schedule, BIAX provided its infringement contentions and relevant associated documents to the Defendants on June 30, 2011. The Defendants were then required to produce documents showing the operation of their accused instrumentalities on August 30, 2011, including source code and programming guides. (Dkt. 128, at § 6.f.4(a).) On November 4, the parties are then required to exchange their respective claim constructions, after having had an opportunity to review the other side's document production and disclosures. (Dkt. 201.)
It is highly prejudicial to BIAX for HP to wait until October 18 to propose major new changes to the agreed upon Protective Order — well after the Court's deadline requiring HP to produce source code and technical documentation for its accused products. If HP believed that these new changes to the Protective Order were necessary, it should have proposed them long before the deadline. Furthermore, HP should have asked the Court for an extension of the Court's deadline to produce its technical documents and source code required by the Preliminary Scheduling Order, rather than to unilaterally withhold production of those documents on the grounds that they contained third party information.
HP should also have obtained whatever authorizations it needed from third parties months ago. For its own document production, BIAX requested in May 2011 that the Court issue an Order allowing BIAX to produce confidential third-party documents to the Defendants, and BIAX took the responsibility of notifying those third parties and addressing their objections. (5/6/2011 Order, Dkt. 130.) HP should have done the same by obtaining whatever third-party authorizations it needed well before the deadline.
HP's "Draft Assurance" language is also unnecessary and beyond the requirements of the agreed upon Protective Order in this case. Dr. Bokhari already signed the Certification required by the Protective Order, in which he agreed to be subject to the authority of this Court in the event of a violation of the Protective Order, and agreed to use any confidential information provided to him for the purposes of this litigation only. (Ex. 3.) The Protective Order entered in this case also already has a "Prosecution Bar" that includes a similar requirement to HP's "Draft Assurance." (Dkt. 146, ¶ 26.) HP's attempts to renegotiate the Protective Order that has already been agreed upon by BIAX and all six Defendant groups is thus unwarranted and untimely.
For the foregoing reasons, BIAX respectfully requests that the Court order HP to make its source available for Dr. Bokhari's inspection, and to produce technical documentation for its accused infringing products by next week.
Curriculum Vitae SHAHID H. BOKHARI
Position: Address: Visa Status: Interests: Date of birth: Degrees: Multiprocessor scheduling with dynamic reassignment. Research Professor Department of Biomedical Informatics Ohio State University 4632 Wakeford St Columbus, OH 43214 Cell 614-596-3477 e-mail shb@acm.org US Permanent Resident Parallel and distributed algorithms and architectures. High performance computing, especially for bioinformatics. January 17, 1953 1974 B.Sc. (Electrical Engineering), University of Engineering Technology, Lahore, Pakistan. 1976 M.S. (Electrical Computer Engineering), University of Massachusetts, Amherst, Massachusetts, USA 1978 Ph.D. (Electrical Computer Engineering), University of Massachusetts, Amherst, Massachusetts, USA Dissertation: Advisor: Harold Stone.Experience 2009-
Research Professor at the Department of Biomedical Informatics (BMI), Ohio State University. Working on several problems in the intersection of biology and high performance computing. In particular, a detailed analysis of the evolution of the 2009 swine-origin influenza virus on the Cray XMT supercomputer was published in 2011. An algorithm to compress DNA sequences against a reference string has been developed and shown to provide excellent compression performance on real-world sequences.2006-2008
After being granted permanent residence in the US, moved to Columbus, Ohio and worked as an Independent Researcher, Consultant and Author.
In particular, working with Prof. Daniel Janics of the Department of Biomedical Informatics (BMI), Ohio State University, I developed a new model for analyzing the evolution of segmented viruses, which has been published.
Also completed a year-long effort at analyzing the performance of the Cray MTA/XMT massively multithreaded supercomputers, supported by an NSF Grant through BMI.
Continued my work with Dr. Jon Sauer of Eagle R D, Boulder, Colorado, on his efforts towards developing a revolutionary silicon-based nanopore device to directly sequence DNA in minutes or hours, rather than days or weeks.
Published an introductory eBook on C programming with emphasis on pointer issues. This is available at www.algopath.com.
1980-2006
With the Department of Electrical Engineering, University of Engineering Technology, Lahore, Pakistan. Joined as Assistant Professor in 1980; promoted to Associate Professor in 1982 and to Full Professor in 1988, Served as Director of the Digital Computers and Computer Communications as well as Director of Postgraduate Studies.
In 2001-2002 set up a Computer Communications Laboratory with a Rs. 10,000,000 grant from the Govt. of Punjab province. This laboratory is described in an article in IEEE Communications.
In 1997 obtained a donation of Rs. 1,000,000 from the Babar Ali Foundation for enhancement and networking of the Digital Computers Laboratory.
In 1994 set up a Linux based network of machines in the Postgraduate Research Laboratory of the Department of Electrical Engineering. This system permits us to run Unix and the X-Window system on cheaply available 386/486 class machines. An article on Linux was published in IEEE Computer in 1995 and attracted worldwide attention. This is the first article on Linux in any IEEE/ACM publication.
In 1993 obtained a donation of 60 386-class machines for the department from the Syed Maratib Ali Trust. Set up the new laboratory and organized sets of experiments for undergraduate students on these machines.
In 1988 responsible for a major revision of all graduate and undergraduate Computer Engineering area courses. Also responsible for the complete admissions procedure for the Master's program.
Wrote a book Assignment Problems in Parallel and Distributed Computing, published by Kluwer Academic Publishers. Carried out research in Parallel and Distributed computing and published numerous research papers, primarily in the IEEE Transactions (Computers, Software Engineering and Parallel Distributed Systems).
In 1980 introduced several graduate courses in the Computer Engineering area (these include Computer Architecture, Graph Theory, Data Structures, Operating Systems and Microprocessor Interfacing). Revised undergraduate computer area courses to increase emphasis on microcomputers. Set up microcomputer laboratories for undergraduate and graduate instruction. Supervised several Master's theses and a Doctoral Dissertation.
2004-05 (summers)
Visiting Scholar, Department of Biomedical Informatics, Ohio State University, Columbus, Ohio. Carried out a detailed study of a mass storage system at Ohio Supercomputing Center. Explored several areas of research in Bioinformatics.
1999-2002 (summers)
Visiting Professor/Scientist. Department of Electrical Computer Engineering, University of Colorado at Boulder. Collaborated with Profs. Jon Sauer and Harry Jordan on parallel algorithms for bioinformatics. Developed new algorithms and parallelized existing code for the Tera (later Cray) MTA-1 2 Multithreaded Architectures.
1998, 97, 96, 95, 94, 93, 92, 91, 88, 87, 83 82 (summers)
Visiting Scientist at the Institute for Computer Applications in Science and Engineering (ICASE), NASA Langley Research Center, Hampton, Virginia. Carried out research on parallel and distributed computing.
1989-91
Visiting Scientist at the Institute for Computer Applications in Science and Engineering (ICASE), NASA Langley Research Center, Hampton, Virginia, on leave from the University of Engineering, Lahore, Pakistan. Was involved in research on parallel and distributed computing. Carried out extensive experimentation on the communication performance of the Intel iPSC-860 hypercube.
1984-86
Visiting Scientist at the Institute for Computer Applications in Science and Engineering (ICASE), NASA Langley Research Center, Hampton, VA, on leave from the University of Engineering, Lahore, Pakistan. Was involved in several research projects related to multiple computer systems. Worked on the HEP-1 and Flex/32 parallel processors.
1978-79
1975-78
1975
(Summer) Research assistant to Professor Roger Ehrich at the Department of Electrical Computer Engineering, University of Massachusetts, Amherst. Assisted Prof. Ehrich in his work on texture analysis algorithms.
1974
(September to December) Research Associate at the Department of Electrical Engineering, University of Engineering Technology. Lahore. Worked on a project funded by the US NOAA, investigating meteor scatter communications.
1973-74
Short-term Visiting Positions
IEEE Transactions on Communications. June 1995 March 1997 June 1998
Guest Researcher. Vienna Center for Parallel Computing, University of Vienna. Visiting Lecturer, Institute for Parallel High Performance Computer Systems, University of Stuttgart. AIST Fellow, Electrotechical Laboratory, Agency for Industrial Science and Technology, TsukubaActivities in professional societies
Member Referee IEEE Trans. Computers, IEEE Trans. Software Eng., IEEE Trans. Comput. Biology and Bioinf., IEEE Trans Parallel Dist. Systems, IEEE Computer, IEEE Parallel Dist. Tech., Journal of Parallel Distributed Computing, Inf. Proc. Letters, Bioinformatics Counselor Institute of Electrical Electronics Engineers (IEEE), USA (Elected Senior Member in July 1984) (Elected Fellow in January 1997) IEEE Computer Society Member IEEE Communications Society Fellows Committee, 2001 — 2003 Association for Computing Machinery (Elected Fellow in January 2000) IEEE Student Branch, Univ. of Engineering, Lahore, 1982-1984.Honors
Best Presentation Award for "MAX: An algorithm for finding maximum on an array processor with a global bus," 1981 International Conf. on Parallel Processing, Bellaire, Michigan, USA.National Book Foundation of Pakistan, First Prize in the field of Electrical Engineering for the book Assignment problems in Parallel and Distributed Computing, 1989.
Certificate of Recognition from NASA. For the creative development of a technical innovation "Three-Dimensional Compressible Transition on a 20 Processor Flex/32 Minicomputer," September 1, 1993.
Elected Fellow of the IEEE for Contributions to the mapping problem in parallel and distributed computing, January 1997.
Elected Fellow of the ACM for Research contributions to automatic load balancing and partitioning of distributed processes, January 2000.
Listed as one of 250 Highly Cited Researchers in Computer Science by ISI/Science Citation Index (www.isihighlycited.com), 2003.
Awarded the EBI-EA Alien of Extraordinary Ability permanent resident visa by the US government, 2006. This is the highest ranked employment based visa and requires a "level of expertise indicating that the individual is one of those few who have risen to the top of the field of endeavor."
Certificate of Appreciation from the IEEE Communications Society (10 year member), 2006.
Listed in Marquis Who's Who. Who's Who in America. Who's Who in Asia, Who's Who in Science Engineering.
Consulting Experience: March 2011-September 2011
Expert Consultant on matters related to computer architecture. This work involved investigating several architectures for possible patent infringements.
October 2009-May 2011
Expert Consultant on matters related to computer architecture. This work involved research into, and refinement of several claim charts related to 6 patents.
October 2007-April 2008
Expert Consultant on matters related to computer architecture. Provided consulting services related to patent infringement and validity issues.
2005-2008
1999-2001
1998-1999
Consultant to Systems Ltd. . . . a software house located in Lahore. Worked on developing techniques to solve the Y2K problem. This involved extensive use of lexical analysis, parsing and compiler tools.
1980-2000
Consultant to Packages Ltd., a paper manufacturing company in Lahore. Advised Packages on various combinatorial optimization, networking, database and information security problems. Implemented a program for minimizing waste on a production line.
Publications Peer-reviewed journal publications
1. Bokhari, S.H., Javed, A., and Grossi, M.D. (1975). Data Storage for Adaptive Meteor Scatter Communication. IEEE Trans Commun., 23, 397-399.
2. Stone, H., and Bokhari. S.H. (1978). Control of Distributed Processes. IEEE Computer, 11, 97-106.
3. Bokhari, S.H. (1979). Dual Processor Scheduling with Dynamic Reassignment. IEEE Trans. Software Eng., 5, 341-349.
4. Bokhari, S.H. (1981). On the Mapping Problem. IEEE Trans. Computers, 30, 207-214.
5. Bokhari, S.H. (1981). A Shortest Tree Algorithm for Optimal Assignments across Space and Time in a Distributed Processor System. IEEE Trans. Software Eng. 7, 583-589.
6. Bokhari, S.H., Hussaini, M.Y., and Orszag, M.A. (1982). Fast Orthogonal Derivatives on the Star. Computers and Mathematies with Applications. 8, 367-377.
7. Bokhari, S.H., (1984). Finding Maximum on an Array Processor with a Global Bus. IEEE Trans Computers. 33. 133-139.
8. Bokhari. S.H., and Raza. A.D. (1986). Reducing the Diameters of Computer Networks. IEEE Trans Computers. 35, 757-761, 1986.
9. Bokhari, S.H., (1987). Multiprocessing the Sieve of Eratosthenes. IEEE Computer. 20, 50-58.
10. Berger M.J., and Bokhari, S.H., (1987). A Partitioning Strategy for Non-uniform Problems across Multiprocessors. IEEE Trans. Computers. 36, 570-580.
11. Bokhari, S.H. (1988). Partitioning Problems in Parallel, Pipelined and Distributed Computing. IEEE Trans. Computers. 37, 48-57.
12. Erlebacher, G., Bokhari, S.H., and Hussaini, M.Y. (1990). Parallelization of a Three-Dimensional Compressible Transition Code. AIAA Journal, 28. 83-90.
13. Bokhari. S.H. (1993). A Network Flow Model for Load Balancing in Circuit-switched Multicomputers. IEEE Trans. Par Dist. Syst., 4, 649-657.
14. Iqbal M.A., and Bokhari, S.H. (1995) Efficient Algorithms for a Class of Partitioning Problems. IEEE Trans. Par. and Dist. Syst., 6, 170-175.
15. Bokhari, S.H. (1995). The LINUX Operating System. IEEE Computer. 28, 74-79.
16. Bokhari, S.H. (1996). Multiphase Complete Exchange on Paragon, SP2 and CS-2. IEEE Par. Dist. Tech. 4, 45-59.
17. Bokhari, S.H. (1996). Multiphase Complete Exchange: A Theoretical Analysis. IEEE Trans. Computers. 45, 220-229.
18. Bokhari, S.H., and Nicol, D.M. (1997). Balancing Contention and Synchronization on the Intel Paragon. IEEE Concurrency 5, 75-83.
19. Bokhari, S.H., and Rehman, R. (1999). Linux and the Developing World. IEEE Software, 16, 58-64.
20. Bokhari, S.H., and Sauer, J.R. (2004). Sequence Alignment on the Cray MTA-2. Concurr. Comput.: Pract Exper., 16, 823-839.
21. Bokhari, S.H., Ahmed, M., Sohail, S., Khan, R.H., Mirza, J.A., and Ali, M. A. (2004) Networking Laboratory for the Developing World. IEEE Communications, 42, 106-113.
22. Bokhari, S.H., and Sauer, J.R. (2005). A Parallel Graph Decomposition Algorithm for DNA Sequencing with Nanopores. Bioinformatics, 21, 889-896.
23. Bokhari, S.H., Rutt, B., Wyckoff, P., Buerger, P. (2006). Experimental analysis of a mass storage system. Concurr. Comput. Pract. Exper., 18, 1929-1950.
24. Ahmed. M., and Bokhari. S. (2007). Mapping with Space Filling Surfaces. IEEE Trans. Par. Dist. Syst., 18, 1258-1269
25. Bokhari. S. H, and Janies, D.A. (2010). Reassortment Networks for Investigating the Evolution of Segmented Viruses. IEEE/ACM Trans. Comput. Biol. Bioinf., 7, 288-298.
26. Bokhari, S. H, and Saltz. J.H. (2010). Exploring the Performance of Massively Multithreaded Architectures. Concurr Comput.: Pract. Exper., 22, 588-616.
27. Bokhari, S. H, Pomeroy L. W., and Janies, D.A. (2011). Reassortment Networks and the Evolution of Pandemic HINI Swine-origin Influenza. IEEE/ACM Trans. Comput. Biol. Bioinf.,http://doi.ieeecomputersociety.org/10.1109/TCBB.2011.95 .
Conference Papers
28. Bokhari, S.H. (1977). Distributed Processing at the University of Massachusetts. Proc. Brown University Distributed Processing Workshop, pp. 65-67.
29. Bokhari, S.H. (1979). Branching Processes and the Analysis of Conditional Waiting Times in a Round-robin Processor. Proc. Johns Hopkins Conf Comput. Info. Sci. Syst.
30. Lambiotte, J., Bokhari, S., Hussaini, M.Y., and Orszag, S. (1982). Navier-Stokes Solution on the Cyber 203 by a Pseudospectral Technique. Proc. 10th. IMACS World Congress, pp. 305-307.
31. Bokhari, S.H. (1985). Shuffle-exchanges on Augmented Meshes. Proc. 1st Int. Conf. on Supercomputing Systems, pp. 613-617.
32. Iqbal, M.A., Saltz, J.H., and Bokhari, S. (1986). Performance Tradeoffs in Static and Dynamic Load Balancing Strategies. Proc. Int. Conf. Par. Proc., pp. 1040-1047.
33. Erlebacher, G., Bokhari, S., and Hussaini. M.Y. (1987). Three-dimensional Compressible on a 20 processor Flex/32 Multicomputer. Sixth IMACS Int. Symp. Computer methods for partial differential equations.
34. Bokhari, S.H. (1991). Multiphase Complete Exchange on a Circuit Switched Hypercube. Proc. Int. Conf Parallel Proc., pp. 525-529.
35. Berryman, S. and Bokhari, S. (1992). Complete Exchange on a Circuit-Switched Mesh. Proc. Scalable High Perf. Comput. Conf., pp, 300-306.
36. Nicol, D.M., and Bokhari, S.H. (1994). Optimal Multiphase Complete Exchange on Circuit-Switched Hypercube Architectures. Sigmetrics Conference, pp. 252-260.
37. Jordan, H., Bokhari, S., Staker, S. Sauer, J., ElHelbawy, M., and Piket-May, M. (2001). Experience with ADI-FDTD Techniques on the Cray MTA Supercomputer. Proc. SPIE Conf., vol. 4528, pp. 68-76.
38. Bokhari, S.H., Glaser, M.A., Jordan, H.F., Lansac, Y., Sauer, J.R., and Zeghbroeck, B.V. Parallelizing a DNA Simulation Code for the Cray MTA-2. (2002). Proc. IEEE Comp. Soc. Bioinform. Conf., pp. 291-302.
Other Publications (books, chapters and tech. reports)
39. Bokhari, S.H. (1987). Assignment Problems in Parallel and Distributed Computing. (Boston: Kluwer Academic Publishers).
40. Bokhari, S.H., and Mavriplis, D. (1998). The Tera Multithreaded Architecture and Unstructured Meshes, NASA CR-1998-208953, ICASE Interim Report No. 33, A revised version, with Dimitri Mavriplis and Bracy Elton, September 2000, is available at http://home.earthlink.net/-drshb.
41. Bokhari, S.H., and Saucr, J.R. (2006). Parallel Algorithms for Bioinformatics. In Parallel Computing for Bioinformatics and Computational Biology, A, Zomaya, ed. (New Jersey: Wiley), pp. 509-529.
42. Bokhari, S.H. (2008). C Programming: Memory Pointers, (Columbus: Algopath).
EXHIBIT A ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND BY PROTECTIVE ORDER
I. Shahld H. Bokhari state:
1. I reside at 4632 Wakeford ST. Columbus. OH 432142. My present employer is The Ohio State University;
3. My present occupation or job description is Research Professor;
4. I agree to keep confidential all information provided to me in the matter of BIAX Corporation v. Motorola Solutions, Inc., Motorola Mobility, Inc., Hewlett-Packard Company, Cisco Systems, Inc., Canon U.S.A., Inc., Canon Inc., Brother International, Brother Industries, Ltd., Ricoh Americas Corporation, and Ricoh Company, Ltd., Case No. 10-CV-03013-PEB-KLM in the United States District Court for the District of Colorado, and to be subject to the authority of that Court in the event of any violation or dispute related to this agreement.
5. I agree to use any confidential information provided to me in this matter for the purposes of this litigation only, and will not use such information in any other way.
6. I have been informed of and have reviewed the Protective Order entered in this case, and I will not divulge any information, documents or things that are subject to the Protective Order except in accordance with the provisions of the Order;
7. I state under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.09/30/2011 SHAHID H. BOKHARI Shahid Bokhari
Executed on _____________________________ [Printed name]EXHIBIT B CERTIFICATION OF CONSULTANT
I. Shahid H. Bokhari [print or type full name], of4632 Wakeford St. Columbus, OH 43214 am not art employee of the Party who retained me, or of a competitor of the opposing Party. If at any time after I execute this Certificate of Consultant and during the pendency of the Action I become an employee of a competitor of the opposing Party, I will promptly inform the counsel for the party who retained me in the Action, and I will not thereafter review any Designated Materials marked by the opposing Party as "ATTORNEYS' EYES ONLY" unless and until the Parties agree or the Court orders otherwise.I state under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.SHAHID H. BOKHARI Shahid Bokhari
Executed on 09/30/2011 [printed name] [signature] Magistrate Judge Kristen L. MixAlfred A. Arraj United States Courthouse
Room A-105
901 19th Street
Denver, Colorado 80294-3589 BIAX Corp. v. Motorola Mobility, Inc., et al.,
Re: Civil Action No. 1:10-cv- 3013-PAB-KLM To The Honorable Magistrate Judge Mix:We write on behalf of Defendant Hewlett-Packard Company ("HP") regarding Plaintiff BIAX's designation of Dr. Shahid Bokhari as an expert in this matter. Specifically, HP respectfully requests a protective order preventing Dr. Bokhari from accessing HP's highly confidential information (including source code) unless additional assurances are provided. HP also seeks an amendment to the Protective Order allowing third parties an opportunity to object to outside consultants with respect to their confidential information that is or will be produced by HP or other parties in this matter.
Introduction
HP has made available its most sensitive technical information, including its proprietary source code and architecture specifications. BIAX has identified Dr. Bokhari as the BIAX expert who will review HP confidential information. HP believes there is a significant risk that its highly confidential information may be used or disclosed improperly, even if inadvertently. Balancing BIAX's desire to use this particular expert and HP's concerns, HP proposed additional assurances that would allow BIAX to use Dr. Bokhari and, at the same time, alleviate HP's concerns. BIAX will not agree to any additional safeguards.
Additionally, the accused HP products often incorporate or integrate third party technology or components. Because of this. HP has in its possession, custody or control third party confidential information in the form of documents and source code. However, the Protective Order does not allow a third party to object to an expert's review of their confidential materialwhere that material has been produced by HP and not the third party. Allowing a consulting expert to review party-produced highly confidential third party material without an opportunity to object would circumvent the protections otherwise available under the Protective Order. HP has proposed revised language to address this anomaly in the Protective Order, and BIAX has refused to consider it.
In contrast, the Protective Order (Ex. 1) does provide a mechanism for a third party — that is also the producing party — to object to an expert reviewing their confidential information. Five third parties have already been subpoenaed and have produced, or will be producing, information.
Statement of Relevant Facts
Argument
1. HP has produced "Highly Confidential — Attorneys' Eyes Only" documents and made available its most confidential technical software source code and architecture documentation. HP has produced or will produce third party documents in its possession, custody or control that contain third party confidential information. HP's source code also references or includes third party confidential source code.
2. On October 3, 2011, BIAX designated Dr. Bokhari to review HP's confidential material. HP sought additional information to evaluate Dr. Bokhari, including information required to be provided under ¶ 18 of the Protective Order. Based on Dr. Bokhari's curriculum vitae (Ex. 2) and representations by BIAX, HP understands that Dr. Bokhari has recently been retained by Plaintiffs counsel to analyze patents and products for an undisclosed entity.
3. On October 13, 2011, HP formally objected to Dr. Bokhari based on Dr. Bokhari's previous engagements and his pre-litigation analysis of patents and targeting products and companies for patent infringement lawsuits. HP also objected because no third parties were notified that Dr. Bokhari would review their confidential information and, therefore, had no opportunity to object.
4. The parties met and conferred telephonically to discuss HP's formal objections. Thereafter. HP sent e-mails and engaged in another telephonic conference with BIAX attempting to reach a compromise without court intervention. HP agreed to withdraw its objection to Dr. Bokhari if BIAX and Dr. Bokhari would agree to additional assurances. HP also proposed revised language regarding a third party's right to be notified of and object to a consulting expert. BIAX refused any compromise and indicated its intention to approach this Court to force clearance of Dr. Bokhari and immediate production of HP's source code.
5. On October 19, 2011, BIAX initiated a call with this Court for immediate production of HP source code. At the same time, HP notified the court of its intention to seek a protective order preventing Dr. Bokhari from reviewing HP's highly confidential information and modification of the protective order to protect third parties.HP's Objection To Dr. Bokhari
One key item that was identified only upon inquiry was that Dr. Bokhari had a prior engagement with Plaintiff, Paragraph 18(e) requires at least this minimal level of information.
A court should balance the interests of the parties where the disclosure of confidential information is opposed. BASF Corp. v. United States, 321 F. Supp. 2d 1373, 1378 (Ct. Int'l Trade 2004) (Ex. 3). Moreover, when "disclosure of confidential information to a third-party consultant is opposed . . ., [a] court will balance the movant's interest in selecting the consultant most beneficial to its case, considering the specific expertise of this consultant and whether other consultants possess similar expertise, against the disclosing party's interest in protecting confidential commercial information from disclosure to competitors." Id. As the designating party, BIAX "bears the burden of showing that there are not other experts available or that those available will be less useful than [Dr. Bokhari]." Saso Golf, Inc. v. Nike, Inc., No. 08 C 1110, 2009 WL 3242112, at *2 (N.D. Ill. Oct. 5, 2009) (citation and internal quotation marks omitted) (Ex. 4). BIAX has not shown Dr. Bokhari's unique usefulness in this matter or its inability to find another expert in this field. To the contrary, BIAX has designated other experts for other defendants in this case, and could easily designate an expert that will not expose HP's information to an unacceptable risk of disclosure, even if inadvertent. As set forth below, HP's interest in protecting its highly sensitive confidential material outweighs BIAX's desire to use Dr. Bokhari.
It is clear that Dr. Bokhari has analyzed patents and products to identify targets for patent infringement lawsuits. Dr. Bokhari's consultations can grow into lawsuits where he is re-hired, e.g., his 2007-08 consulting job resulting in his re-hiring for this litigation. Ex. 1, p. 5. Dr. Bokhari has also recently analyzed patents in the same subject matter area as the asserted patents in this case, e.g., his 2009-11 engagement. Id. Further, BIAX has steadfastly refused to provide the most basic of information regarding Dr. Bokhari's 2009-11 engagement, including the names of the clients on whose behalf Dr. Bokhari was consulting and the patents that were at issue in those engagements. Without this information, HP is unable to fully evaluate its risk, and its concerns about the use of Dr. Bokhari are amplified. BIAX's refusal to lay all its cards on the table with respect to Dr. Bokhari highlights HP's reservations about the use of this expert.
However, HP did not provide an unqualified objection to Dr. Bokhari despite the significant ongoing risk of cross-contamination. To the contrary, HP attempted to negotiate with BIAX to allow the use of their designated expert, but only if additional reasonable assurances were provided that would alleviate HP's concerns that its most sensitive confidential information would be sufficiently protected from misuse. Specifically, HP has crafted reasonable and limited assurances that will ensure that its most sensitive information will not be used improperly, even if unintentionally. For reference, HP proposes the following additional assurances for Dr. Bokhari:
As of October ___, 2011, I agree that I am not working for any entity in a capacity of reviewing patents or products, services, or targets for non-practicing entities, other than as related to this litigation. Furthermore, I agree that I will perform no such work for a period of four years following the trial in this litigation. I agree not to perform any work related to the prosecution of a patent directed to or related to the field of computer processor architecture for a period of four years following trial in this litigation. Nothing in the foregoing shall prevent me from being retained as a consulting or a testifying expert for any party in a litigation that is underway when I am retained, except that I agree not to perform any work adverse to HP for a period of three years following the trial.
BIAX has refused to consider any such protections or negotiate the terms of additional assurances. Instead BIAX argues that Dr. Bokhari's agreement to be bound by the Protective Order is sufficient to allow his review of HP highly confidential material. However, such an agreement vel non is insufficient to merit clearance under the Protective Order. E.g., BASF, 321 F. Supp. 2d at 1380-81; FTC v. Exxon Corp., 636 F.2d 1336, 1350-51 (D.C. Cir. 1980) (Ex. 5). Indeed, the Protective Order expressly contemplates that, following a party's disclosure of a proposed expert's identity and history, an opposing party may object in order to protect its confidential information. Id., ¶¶ 18, 19. This procedure seeks to balance a party's desire for a particular expert with the inherent inability of that expert to forget information they have learned. Litton Indus., Inc. v. Chesapeake Ohio Rwy. Co., 129 F.R.D. 528, 531 (E.D. Wis. 1990) (Ex. 6) ("[O]nce an expert has digested [] confidential information, it is unlikely that the expert will forget. . . . If the expert is called upon two years after this litigation . . ., will he really be able to compartmentalize all he or she has learned and not use any of the information obtained from [the producing party]?").
On balance, BIAX's desire to use a particular expert with no identified unique usefulness does not outweigh HP's legitimate concern that its highly sensitive material may be inadvertently used improperly in the near future. Accordingly, to the extent that BIAX asserts that Dr. Bokhari is the only expert qualified to review HP confidential material, HP requests that the Court require Dr. Bokhari to be bound by the additional assurances set forth by HP. Modification of the Protective Order
HP, and presumably other defendants, have in their possession, custody or control third party information that contains that third party's highly confidential information. This information has been, or will be, produced to BIAX. In addition, because HP's source code references or makes use of third party source code and third party libraries, HP's source code also encompasses third party confidential information. When subpoenaed, each of these third parties would have the opportunity to object to an outside consultant when notified of that consultant. However, the Protective Order does not currently require third parties to be notified by BIAX of its intent to have a consultant review their highly confidential material and source code where that material is produced by HP (or another party). Similarly, where a third party produces information that contains HP (or another party's) highly confidential information, HP has no ability to object to a BIAX expert's review of that material. In order to avoid this unintended loophole in the Protective Order, all parties, including third parties, should be notified of each consultant that will review their highly confidential material and given the opportunity to object regardless of how that material is produced in this matter. HP will work with all parties and third parties it is currently aware of to craft proper language in an attempt to submit a revised agreed Protective Order to the Court. Draft representative language is attached as Exhibit 7.
Several of the third parties implicated by HP's productions have been subpoenaed in this matter already and have produced documents under those subpoenas. In particular, PMC-Sierra was subpoenaed on September 14, 2011, and recently produced documents under that subpoena. HP understands that some HP confidential information may be contained in this third party production.
No defendant, including HP, was served with a copy of the September 14, 2011 subpoena to PMC-Sierra, and no defendant has been given the opportunity to object to a BIAX expert's review of their confidential material contained in PMC-Sierra's production. To the extent that any HP material has been disclosed to a BIAX expert by way of a third party production — given BIAX is fully aware that HP would review that expert's credentials — HP will separately seek redress with the Court.
BIAX attempts to hide behind the literal language of the Protective Order and avoid the implicit requirements that BIAX itself sought. Specifically, less than one month ago, BIAX moved this Court to amend the Protective Order to add additional protections for third parties based on BIAX's conversations with PMC-Sierra. ECF No. 195. In its motion, BIAX stated:
In response to [BIAX's] subpoena, PMC raised its concerns about certain provisions of the Protective Order. First, with regard to access at trial, [the Protective Order] does not require notice to third parties, such as PMC. . . . Second, the parties move to add a requirement to the notice provision of ¶ 18 of the Protective Order that any proposed consultant/expert who reviews Designated Material must disclose his or her pending patent applications and issued patents involving microprocessors."
Now, BIAX seeks to circumvent the intent of the Protective Order, the protections originally provided in the Protective Order, as well as the additional protections BIAX itself negotiated with PMC-Sierra, based on a loophole with respect to which party produces the highly confidential information. BIAX's refusal to even notify PMC-Sierra of its expert underscores the severity of the issue. BIAX's attempts to frustrate the intent of the Protective Order should not be allowed. All parties, including third parties should be notified of an expert and given the ability to object to that expert's review of any highly confidential information produced in the litigation regardless of how that information is produced.
Conclusion
For the reasons stated above, HP respectfully requests that this Court enter a protective order denying Dr. Bokhari access to HP confidential information unless he is willing to agree to additional assurances. Additionally, HP respectfully requests that the Court order the Parties to submit an amended protective order to allow equal protection for all confidential information regardless of the producing party, including the right of all parties to be notified of any expert that may review their highly confidential material and have an opportunity to object.
Best Regards, Rick L. RamboREPRESENTATIVE ADDITIONAL LANGUAGE
18-1. Notice of other party production. Because a Designating party's Designated Materials may contain another party's Confidential Information under this Protective Order (including third parties), within ten (10) calendar days from receipt of the notice specified in Paragraph 18 a Designating Party shall notify a Receiving Party in writing of any other party whose Confidential Information is contained within the materials and information that have been produced by the Designating Party (plus three (3) extra days if notice is given other than by hand delivery, e-mail transmission or facsimile transmission). Any notice under this provision must be in writing and contain the following information for each third party in question: (1) the name of the party, and only if a third party, (2) the contact information for the party, including e-mail address and telephone number.18-2. Notice to other parties. Upon receiving the notice of any other party pursuant to section 18-1, the Receiving Party shall provide notice of the Outside Consultant within ten (10) business days from receipt of the 18-1 notice to all disclosed parties, which notice shall include: (a) the Outside Consultant's name and business title; (b) business address; (c) business or profession; (d) CV; (e) any previous or current relationship (personal or professional) with any of the Parties; (f) a list of other cases in which the individual has testified (at trial or deposition) within the last four years; (g) a list of all companies with which the individual has consulted or by which the individual has been employed within the last four years; (h) a list of all of the individual's pending patent applications and issued patents involving microprocessors, and (i) a signed copy of the "Agreement To Be Bound By Protective Order," attached as Exhibit A, and the "Certification of Consultant." attached hereto as Exhibit B.
19-1. Objections by other parties. A party (including third parties) receiving notice under Paragraph 18-2 shall have ten (10) business days from receipt of the notice to object in writing to such disclosure (plus three (3) extra business days if notice is given other than by hand delivery, e-mail transmission or facsimile transmission). Any such objection must set forth in detail the grounds on which it is based. After the expiration of the ten (10) business day (plus three (3) days, if appropriate) period, if no objection has been asserted, then Designated Material may be disclosed to the Outside Consultant pursuant to the terms of this Order. However, if any party objects within the ten (10) business day (plus three (3) days, if appropriate) period, the Receiving Party may not disclose that party's confidential material to the challenged individual absent resolution of the dispute or Court Order. In the event a party makes a timely objection, the parties shall meet and confer to try to resolve the matter by agreement. If the parties and any objecting party cannot reach an agreement, any objecting party may within ten (10) business days following its objection initiate a conference call to the Court pursuant to Magistrate Judge Mix's discovery procedures to seek a protective order preventing disclosure of the confidential material to the Outside Consultant or for other appropriate relief. If the objecting party fails to initiate a conference call within the prescribed period, any objection to the Outside Consultant is waived, and Designated Material may thereafter be disclosed to such individual (upon signing the "Agreement To Be Bound By Protective Order," attached hereto as Exhibit A, and the "Certification Of Consultant," attached hereto as Exhibit B). If the objecting party timely initiates a conference call, Designated Material shall not be disclosed to the challenged individual until and unless a final ruling allowing such disclosure is made by this Court or by the consent of the Objecting Party, whichever occurs first.