The opinion of the court was delivered by: The Honorable Jeffrey W. Johnson United States Magistrate Judge
STIPULATED PROTECTIVE ORDER TRIAL NOTE CHAGES MADE BY THE COURT
WHEREAS, Plaintiff Hubbell Incorporated and Defendant Acuity Brands, Inc. recognize that pursuant to discovery or otherwise during discovery or otherwise in the conduct of the above titled litigation (the "Action"), certain trade secret, proprietary, confidential, business, financial, and commercially sensitive information within the meaning of Rule 26(c) of the Federal Rules of Civil Procedure may be disclosed;
WHEREAS, this Action involves, inter alia, (a) highly confidential, technical, proprietary and trade secret subject matter and (b) highly sensitive and confidential financial, business and marketing information; and
WHEREAS, the unrestricted disclosure of such trade secret, proprietary, confidential, business, financial and commercially sensitive information would be extremely prejudicial to the parties and compromise their respective competitive positions or subject them to liability under existing agreements; therefore, the parties have determined that said information should be kept confidential in order to protect the legitimate business interests of the parties and their customers, business partners, and other non-parties to this action;
The parties, by and through their respective undersigned counsel, hereby stipulate to, and request that the Court enter, the following Protective Order pursuant to Federal Rule of Civil Procedure 26(c).
IT IS HEREBY ORDERED that this Protective Order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure be, and is hereby, entered.
1. Right to Designate. Any party to this Action, and any non-party from whom discovery is sought in connection with this Action who agrees to be bound by the procedures of this Protective Order, may designate as "Confidential" or "Highly Confidential" any "Protected Information," which is defined herein as any information, document, testimony, thing, data, file, or other information that contains proprietary, confidential, business, financial or commercial information, the disclosure of which is likely to cause harm to the competitive position of the party making the designation, or that constitutes, reflects, or concerns trade secrets, know-how or proprietary data. Such designation may be made by any party to this Action or by any non-party who agrees to be bound by the procedures of this Protective Order (the "Designator"). "Designator" as used herein refers to any party or non-party who makes a designation pursuant to this Protective Order.
2. Confidential Designation. "Confidential" and "Highly Confidential," as used in this Protective Order, shall refer to any information, document, testimony, or other discovery material designated in accordance with this Protective Order and all copies thereof, and shall also refer to the information contained in such material. By designating material "Confidential" or "Highly Confidential," the Designator is representing that it believes in good faith that the designated material is entitled to protection under Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure. "Confidential" material includes any information, document, testimony or other discovery material that contains proprietary, confidential and/or commercially sensitive information. "Highly Confidential" material includes any information, document, testimony, or other discovery material that constitutes, reflects, or concerns trade secrets, know-how or proprietary data, or that contains any business, financial or commercial information and for which the designation as "Confidential" hereunder would not be sufficient because disclosure is likely to cause harm to the competitive position of the party making the designation.
3. Disclosure of "Confidential" or "Highly Confidential" Protected Information. Until or unless the Court rules otherwise, Protected Information designated as "Confidential" or "Highly Confidential" and copies, extracts, compilations and summaries thereof, as well as the information therein, shall be maintained in confidence by the party to whom such material is produced. Protected Information designated "Confidential" or "Highly Confidential" shall not be disclosed or otherwise communicated to any person except:
A. "Confidential" and "Highly Confidential": Outside counsel for the parties who have appearances entered in the case for the parties, as well as the partners, associates, clerical, litigation support and paralegal employees of such counsel;
B. "Confidential": Two (2) in-house counsel for each of Plaintiff and Defendant who are directly involved in, and whose access to materials and information designated "Confidential" is reasonably required for the management, prosecution, defense or settlement of this Action, or the supervision or oversight of outside litigation counsel and clerical support staff of such in-house counsel, provided that an executed undertaking in the form of Exhibit A hereto is provided to the other party ten (10) days prior to any disclosure of Protected Information to such in-house counsel or clerical staff, and provided further that the in-house counsel are attorneys who are members of a state bar and meet the requirements of Exhibit A;
C. "Confidential" and "Highly Confidential": Consultants, and/or consulting firms for each of the parties, specifically engaged by counsel or the parties to assist in this Action, who have been properly designated in accordance with Paragraphs 5 and 6, including execution of an undertaking in the form of the attached Exhibit B;
D. "Confidential" and "Highly Confidential": Vendors retained by a party or by counsel of record, including: graphics or design services retained for purposes of preparing demonstrative or other exhibits for deposition, trial or other court proceedings; copy services, companies that digitize documents, and other similar document management vendors; and jury research or trial consulting services. Any such vendors shall first execute an agreement to be bound by the terms of this Protective Order in the form of Exhibit B. Such agreement may be signed by an authorized agent on behalf of a vendor that is an entity; it need not be signed by each employee of a vendor performing services. In addition, selected items containing Protected Information may be shown to persons selected to serve as members of focus groups, mock juries or similar studies provided that such persons are screened to ensure that they are not employed by or affiliated with competitors of any of the parties hereto, and provided that such persons agree in writing (although not necessarily in the form of Exhibit B) to keep confidential any information disclosed to them during such studies;
E. "Confidential" and "Highly Confidential": Translators of foreign language documents who are not permanently employed by one of the parties, but are contractors retained to provide translations of any material designated as "Confidential" or "Highly Confidential," said translators having agreed to be bound by the provisions of the undertaking attached hereto as Exhibit B, and having signed such undertaking;
F. The Court, pursuant to Paragraph 16 herein, and its officers, court stenographers, and outside copy services used by the Court whose function requires them to have access to material designated as "Confidential" or "Highly Confidential"; and
G. Any other person, upon order of the Court, may have access to "Confidential" and "Highly Confidential" information.
4. Disclosure of "Highly Confidential" Protected Information. Protected Information designated as "Highly Confidential," and copies, extracts, compilations and summaries thereof, may only be disclosed or otherwise communicated to the persons identified in Paragraph 3 (subparagraphs A and C-G).
5. Consultant Defined.For purposes of Paragraph 3.C herein, a consultant shall be defined as a person, and his or her secretarial assistants to whom it is necessary to disclose "Confidential" or "Highly Confidential" information for the purposes of this litigation, who is neither an employee of a party nor anticipated to become an employee, and who is retained solely as a bona fide consultant or expert for purposes of this litigation, whether full or part time, by or at the direction of counsel for a party.
6. Procedure For Consultant Access To Confidential Information.The procedure for having a consultant approved for access to information designated as "Confidential" or "Highly Confidential" shall be as follows:
A. The party seeking to have a consultant, as defined in Paragraph 5 herein, approved shall send counsel for all other parties by electronic transmission or facsimile:
i. a current resume or curriculum vitae of such person, which shall include such person's name, office and residence addresses; a description of any past or present relationship with any of the parties in this action; an identification of cases and clients on behalf of whom such person has consulted, provided affidavits or declarations, or testified in deposition or trial in the preceding four years; and a description of other past and present employers and persons or entities with whom the consultant has been engaged in any non-confidential consulting relationships in the last ten years; and
ii. a copy of a completed and signed declaration attached hereto as Exhibit B.
B. Within ten (10) days after transmission of the information and signed undertaking described in subparagraph A of this Paragraph by the party seeking approval, the other party may object to the person proposed for approval if facts available to that party give it reason to believe that there is a reasonable likelihood that the designated person may, even inadvertently, use information designated "Confidential" or "Highly Confidential" for purposes other than the preparation for trial of this case, or request further information concerning the expert in order to decide whether to object. Said objection or request must be in writing and transmitted by facsimile or email to the party proposing the consultant within the 10-day period. A written objection made under this Paragraph shall state with reasonable particularity the grounds upon which the objection is based. Failure to object or to request further information within ten (10) days to a person proposed shall be deemed approval, but shall not preclude a party from seeking an Order from the Court to preclude continued access to "Confidential" or "Highly Confidential" information by that person where facts suggesting a basis for objection are subsequently learned by the party or its counsel. A party seeking to have a consultant approved shall not disclose any information designated as "Confidential" or "Highly Confidential" to the proposed consultant until (i) after any and all objections to the proposed disclosure have been resolved by the parties in writing or by Court order, or (ii) if no objections have been made during the ten (10) day period to object, until eleven (11) days after the transmission of the information and signed declaration described in subparagraph A of this Paragraph by the party seeking approval.
C. If the other party so objects, the parties shall, within five (5) days from the date of receipt of the objection or request, confer and attempt to resolve the dispute. At that conference the objecting party shall inform the party requesting approval of its reasons for objecting to the proposed consultant or for seeking further information. If the parties cannot resolve the dispute, or if the conference does not take place, disclosure of the "Confidential" or "Highly Confidential" information may not be made except by order of the Court. The parties agree that the ...