IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION FUNDSXPRESS FINANCIAL NETWORK, INC., Plaintiff, v. DIGITAL INSIGHT CORPORATION, JOHN DORMAN, VINCENT BRENNAN, RONALD GOFFMAN, ERIC EDWARDS and STEPHEN CRAIN, Defendants. PROTECTIVE ORDER Upon motion of all the parties for a Protective Order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, It is hereby ORDERED that: 1. All Classified Information produced or exchanged in the course of this litigation shall be used solely to prepare for and try this litigation and any appeal, and for no other purpose whatsoever, and shall not be disclosed to any person except in accordance with the terms hereof. 2. "Classified Information," as used herein, means any information of any type, kind, or character that is designated as "Confidential" or for "Attorneys' Eyes Only" by any of the supplying or receiving parties, whether it be a document, information contained in a document, information revealed during a deposition, information revealed in an interrogatory answer or otherwise. In designating information as "Confidential" or for "Attorneys' Eyes Only." a party will make such designation only as to that information that it, in good faith, believes contains confidential information. Information or material that is available to the public, including catalogues, advertising materials, and the like shall not be so classified. 3. "Qualified Persons," as used herein means: (a) Attorneys of record for any party and employees of attorneys of record to whom it is necessary that the material be shown for purposes of this litigation; (b) Actual or potential independent technical experts or consultants who have been designated in writing with at least 10 business days notice in writing to all counsel prior to any disclosure of "Confidential" or for "Attorneys' Eyes Only" information to such person, and who have signed a document in the form of Exhibit A attached hereto (such signed document to be filed with the Clerk of this Court by the attorney retaining such person), with the provision that, during the 10-day notice period, opposing counsel may object to disclosure of the "Confidential" or "Attorneys' Eyes Only" information to such person and such objection shall bar the disclosure of the designated material to that person until the parties agree otherwise or until the Court rules otherwise; (c) One (1) party representative (in-house counsel, corporate officer, or employee for a corporate party) who shall be designated in writing by the party at least 10 business days prior to any disclosure of "Confidential" information to such person and who shall sign a document in the form of Exhibit B attached hereto (such signed document to be filed with the Clerk of this Court by the party designating such person), with the provision that, during such prior notice period, opposing counsel may object to disclosure of the "Confidential" information to such person and such objection shall bar the disclosure of the designated material to that person until the parties agree otherwise or until the Court rules otherwise; (d) Insurers and representatives of insurers of any party; (e) Court reporters, videographers, and court personnel; and (f) If this Court so elects, any other person designated as a Qualified Person by Order of this Court, after notice and hearing to all parties. 4. Documents produced in this action may be designated by any party or parties as "Confidential" or for "Attorneys' Eyes Only" by marking each page of the document(s) so designated with a stamp stating "Confidential" or for "Attorneys' Eyes Only." In lieu of marking the original of a document, if the original is not produced, the designating party may mark the copies that are produced or exchanged. Originals shall be preserved for inspection. 5. Information disclosed at (a) the deposition of a party or one of its present or former officers. directors, employees, agents or independent experts retained by counsel for the purpose of this litigation, or (b) the deposition of a third party (which information pertains to a party) may be designated by any party as "Confidential" or for "Attorneys' Eyes Only" information by indicating on the record at the deposition that the testimony is "Confidential" or for "Attorneys Eyes Only" and is subject to the provisions of this Order. Any party may also designate information disclosed at such deposition as "Confidential" or for "Attorneys' Eyes Only" by notifying all of the parties in writing within thirty (30) days after receipt of the transcript of the specific pages and lines of the transcript that should be treated as "Confidential" or For Attorneys Only" thereafter. Each party shall attach a copy of such written notice or notices to the face of the transcript and each copy thereof in his possession, custody or control. All deposition transcripts shall be treated as for "Attorneys' Eyes Only" for a period of thirty (30) days after the receipt of the transcript, except that this provision of the Protective Order, shall not prevent a deponent from reviewing his or her deposition for purposes of signing and/or correcting that deposition during the thirty (30) day period after the receipt of the transcript. All depositions involving information designated as "Confidential' or for "Attorneys' Eyes Only" shall be held in camera and shall be attended only by the court reporter, the witnesses, their counsel, and appropriate Qualified Persons. To the extent possible, the Court reporter shall segregate into separate transcripts information designated as "Confidential" or for "Attorneys' Eyes Only," with blank, consecutively numbered pages being provided in a non-designated main transcript. The separate transcript containing "Confidential" and/or for "Attorneys' Eyes Only" information shall have page numbers that correspond to the blank pages in the main transcript. 6. (a) "Confidential" information shall not be disclosed or made available by any party to this litigation to persons other than Qualified Persons as defined in paragraph 3 above. Information designated as for "Attorneys' Eyes Only" shall be restricted in circulation to Qualified Persons described in paragraph 3(a), (b), and (e) above. (b) Persons receiving copies of "Attorneys' Eyes Only" information provided to a receiving party shall maintain such copies in their offices, except that, in no event, shall copies of documents and information covered by this Protective Order be maintained at any office of Digital Insight Corporation or FundsXpress. Any documents produced in this litigation, regardless of classification, that are provided to Qualified Persons as defined in paragraph 3(b) above, shall be maintained only at the office of such Qualified Person and only working copies shall be made of any such documents. Copies of the documents produced under this Protective Order may be made, or exhibits prepared, by independent copy services, printers or illustrators for the purpose of this litigation provided such independent service providers sign confidentiality agreements with the outside counsel requesting such services. (c) Each party's outside counsel shall maintain a log of all copies of documents designated as "Attorneys' Eyes Only" documents that are delivered to any one or more Qualified Persons as defined in paragraph 3 above. (d) Notwithstanding any other provision of this Protective Order, documents and information covered by this Protective Order may be disclosed to witnesses by outside counsel for the parties if (i) outside counsel believes in good faith that such witnesses will be examined about the document or information during a deposition, hearing, or at trial; and (ii) these witnesses are not given copies of the documents or information. 7. Documents previously produced shall be retroactively designated by notice in writing of the designated classification applicable to each document by Bates number within thirty (30) days of the entry of this order. Documents unintentionally produced without designation as "Confidential" or "Attorneys' Eyes Only" at any time during this litigation may be retroactively designated in the same manner and shall be treated appropriately from the date written notice of the designation is provided to the receiving party. Documents to be inspected shall be treated as for "Attorneys' Eyes Only" during inspection. At the time of copying for the receiving parties, such inspected documents shall be stamped prominently "Confidential" or for "Attorneys' Eyes Only" by the producing party. Nothing herein shall prevent disclosure beyond the terms of this Order if each party designating the information as "Confidential" or for "Attorneys' Eyes Only" consents to such disclosure or if the Court, after notice to all affected parties, orders such disclosures. Nor shall anything herein prevent any counsel of record from using "Confidential" or for "Attorneys' Eyes Only" information in the examination or cross-examination of any person who is indicated on the document itself (as opposed to a transmitting email or transmittal letter) as being an author, source, or recipient of the "Confidential" or for "Attorneys' Eyes Only" information irrespective of which party produced such information. 8. A party shall not be obligated to challenge the propriety of a designation as "Confidential" or for "Attorneys' Eyes Only" at the time the designation is made, and a failure to do so shall not preclude a subsequent challenge thereto. In the event that any party to this litigation disagrees at any stage of these proceedings with the designation by the designating party of any information as "Confidential" or for "Attorneys' Eyes Only," or the designation of any person as a Qualified Person, the parties shall first try to resolve such dispute in good faith on an informal basis, such as by the production of redacted copies. If the dispute cannot be resolved, the objecting party may invoke this Protective Order by objecting in writing to the party who has designated the document, information, or Qualified person. The designating party shall be required to move the Court for an Order preserving the designated status of such information or person within fourteen (14) days of receipt of the written objection, and failure to do so shall constitute a termination of the restricted status of such item. The parties may, by stipulation, provide for exceptions to this Order and any party may seek an order of this Court modifying this Protective Order. 9. Nothing shall be designated as for "Attorneys' Eyes Only" information except information of the most sensitive nature that if disclosed to persons of expertise in the relevant area of knowledge would reveal significant technical or business advantages or disadvantages of the producing or designating party, and that includes, as a major portion, subject matter that is believed to be unknown to the opposing party or parties or any of the employees of the corporate parties or, in the case of FundsXpress, that may be known to the opposing party or parties and their employees but that is unknown to other FundsXpress competitors or to the general public. Nothing shall be regarded as "Confidential" or for "Attorneys' Eyes Only" information if it is information that either: (a) is in the public domain at the time of disclosure, as evidenced by a written document; (b) becomes part of the public domain through no fault of the other party, as evidenced by a written document; (c) the receiving party can show by written document that the information was in its rightful and lawful possession at the time of disclosure; or (d) the receiving party lawfully receives such information at a later date from a third party without restriction as to its disclosure, provided such third party has the right to make the disclosure to the receiving party. 10. In the event a party wishes to use any "Confidential" or for "Attorneys' Eyes Only" information in any affidavits, briefs, memoranda of law, or other papers filed in Court in this litigation, such "Confidential" or for "Attorneys' Eyes Only" information used therein shall be filed under seal with the Court. 11. The Clerk of this Court is directed to maintain under seal all documents and transcripts of deposition testimony and answers to interrogatories, admissions, and other pleadings that have been designated, in whole or in part, as "Confidential" or for "Attorneys' Eyes Only" information by a party to this action and filed under seal with the Court in this litigation. All documents and materials filed with the Court, including but not limited to transcripts of depositions, exhibits, answers to interrogatories, answers to requests for admissions, briefs and memoranda of law which comprise or contain "Confidential" or "Attorneys' Eyes Only" information shall be filed in sealed envelopes or other appropriate sealed containers on which shall be endorsed the title of this action, an indication of the nature of the contents of such sealed envelope or other container, the identity of the party filing the materials, the terms "Confidential Subject to Protective Order" and a statement in substantially the following form: Contains Confidential Information Subject to Protective Order Open Only as Directed by the Court No such sealed envelope shall be opened without an order from the Court identifying by name the person or persons who may have access to the sealed material, and specifically designating which portions of the sealed file may be revealed to them. The first page of any document filed with the Court that comprises or contains "Confidential" or "Attorneys' Eyes Only" information or information taken therefrom shall bear a notice substantially the same as that on the envelope. 12. Unless otherwise agreed to in writing by the parties or ordered by the Court, all proceedings involving or relating to documents or any other information shall be subject to the provisions of this Order. 13. Within one-hundred twenty (120) days after conclusion of this litigation and any appeal thereof, any document and all reproductions of documents produced by a party in the possession of any of the persons qualified under paragraphs 3(a) through (d) shall be returned to the producing party, except as this Court may otherwise order or to the extent such information was used as evidence at the trial. As far as the provisions of this Protective Order entered in this action restrict the communication and use of the documents produced thereunder, such Protective Order shall be binding during this litigation and continue to be binding after conclusion of this litigation. Notwithstanding the foregoing, nothing in this Protective Order shall restrict or prevent (a) further use of documents that are used as exhibits in Court unless such exhibits were filed under seal or (b) a party from seeking written permission of the producing party or order of the Court with respect to dissolution or modification of this Protective Order. 14. This Order shall not bar any attorney herein in the course of rendering advice to his client with respect to this litigation from conveying to any party client his evaluation in a general way of "Confidential" or for "Attorneys' Eyes Only" information produced or exchanged herein; provided, however that in rendering such advice and otherwise communicating with his client, the attorney shall not disclose the specific contents of any "Confidential" or for "Attorneys' Eyes Only" information produced by another party herein if that disclosure would be contrary to the terms of this Protective Order. 15. Any party designating any person as a Qualified Person shall have the duty to reasonably ensure that such person observes the terms of this Protective Order, and the party, by signing this Protective Order, agrees that he or she shall be liable for damages caused by breach of such duty for the failure of any such person to observe the terms of this Protective Order and for contempt. SIGNED AND ENTERED this 10th day of July, 2002. SAM SPARKS UNITED STATES DISTRICT JUDGE Approved as to Form and Contents: GEORGE & DONALDSON, L.L.P. COTTON & GUNDZIK L.L.P. By: R. James George, Jr. By: Aaron C. Gundzik State Bar No. 07810000 California State Bar No. 132137 Admitted Pro Hac Vice 1100 Norwood Tower 725 S. Figueroa St, 34th Floor 114 W. Seventh Street Los Angeles, CA 90017 Austin, Texas 78701 (213) 312-1330 (512)495-1400 (213) 623-8699 (facsimile) (512) 499-0094 (facsimile) ATTORNEYS FOR PLAINTIFF CLARK, THOMAS & WINTERS FUNDSXPRESS FINANCIAL NETWORK, INC. By: Barry Bishop State Bar No. 02346000 300 West 6th Street, 15th Floor P. O. Box 1148 Austin, TX 78767-1148 (512) 472-8800 (512) 474-1129 (facsimile) ATTORNEYS FOR DEFENDANTS [Exhibit A: Example of a Certificate of Confidentiality for material marked "Confidential" or "Attorneys' Eyes Only".] [Exhibit B: Example of a Certificate of Confidentiality for material marked "Confidential".]