The opinion of the court was delivered by: Hon. Margaret A. Nagle
STIPULATED PROTECTIVE ORDER
NOTE: Changes Made By The Court To Page 6, ¶ 4(g)
STIPULATED PROTECTIVE ORDER
The Court, having been advised that the Plaintiffs/Counterdefendants dbest Products, Inc. and Richard Elden and Defendants/Counterclaimants Staples, Inc. and Staples The Office Superstore, LLC (hereafter jointly the "Parties") agree that the discovery and pretrial phase of this action may involve disclosure of trade secrets and other confidential and proprietary technical, marketing, business and corporate information that the Parties may wish to designate as "CONFIDENTIAL" or "CONFIDENTIAL ATTORNEYS' EYES ONLY" for the purpose of this action, hereby enters the following:
1. Proceedings and Information Governed
This Order and any amendments or modifications to it (hereafter the "PROTECTIVE ORDER") shall govern any document, information or other thing furnished by any party, including third parties, to any other party to this lawsuit in connection with the discovery and pretrial phase of this action. The information protected includes, but is not limited to, responses to requests to produce documents or other things, responses to interrogatories, responses to requests for admissions, deposition testimony and all copies, extracts, summaries, compilations, designations and portions thereof. This PROTECTIVE ORDER does not govern proceedings during trial nor does it prohibit either party from seeking a protective order to govern proceedings during trial.
(a) "CONFIDENTIAL" shall mean any information produced in this action that the PRODUCING PARTY reasonably believes to be, reflect, or reveal a trade secret or other confidential research, development, or commercial information that is not publicly available or known, including appropriate diagnostic, technical and maintenance materials.
(b) "CONFIDENTIAL ATTORNEYS' EYES ONLY" including "CONFIDENTIAL OUTSIDE COUNSEL ONLY" shall mean CONFIDENTIAL information that the PRODUCING PARTY deems especially sensitive. The designation "CONFIDENTIAL ATTORNEYS' EYES ONLY" may be used only for highly confidential and extremely sensitive marketing or business information such as names of customers, names of suppliers, customer development information, contacts between a party and that party's customers, business leads, costs of goods purchased, sales prices for goods sold, and profits generated from sales of goods.
(c) "ATTORNEYS" shall include the clerical and paralegal support personnel who are employed by the ATTORNEYS. Inside legal counsel shall be permitted to see information designated for "ATTORNEYS" including "OUTSIDE COUNSEL" provided that Inside Legal Counsel does not show such information to Inside Legal Counsel's employer or any of the employees of Inside Legal Counsel's employer and Inside Legal Counsel shall retain such information in confidence and in a secure manner and treat such information as though he/she were OUTSIDE COUNSEL.
(d) "OUTSIDE EXPERT" shall mean any person not otherwise employed by the RECEIVING PARTY, either as an employee or consultant, who is not employed in a business that competes with any party to this action, and who has been APPROVED to receive the PRODUCING PARTY'S CONFIDENTIAL and CONFIDENTIAL ATTORNEYS' EYES ONLY information. OUTSIDE EXPERTS shall be limited to such persons as, in the judgment of the retaining party's ATTORNEYS, are reasonably necessary for the development and presentation of that party's case.
(e) "APPROVED" shall mean that the procedure described in Section 3 below has been complied with.
(f) "RECEIVING PARTY" shall mean the party (including its employees and agents) who is or will be receiving documents or information from another party.
(g) "PRODUCING PARTY" shall mean the party (including its employees and agents) who is or will be producing documents or information to another party.
3. Procedure for Approvals
(a) All notices and information required by this paragraph shall be served on counsel of record for the other parties by facsimile, mail or hand delivery.
(b) No Party shall be required to disclose expert witnesses to the other Party prior to the time for disclosure under the Federal Rules of Civil Procedure.
(c) Prior to disclosing any CONFIDENTIAL or CONFIDENTIAL ATTORNEYS' EYES ONLY information produced by an adverse party to a party's proposed OUTSIDE EXPERT, the RECEIVING PARTY shall require the expert to sign Exhibit "A" and a copy of the signed Exhibit "A" shall be submitted with the expert report.
4. Designation of Information
(a) Documents and things produced by a party during the course of this litigation, or responses to written discovery requests, shall be designated by the PRODUCING PARTY as containing CONFIDENTIAL information by placing on the first page and on each thing containing such information a legend substantially as follows:
(b) Documents and things produced by a party during the course of this litigation, or responses to written discovery requests, shall be designated by the PRODUCING PARTY as containing CONFIDENTIAL ATTORNEYS' EYES ONLY information by placing on the first page or thing containing such information a legend substantially as follows:
"CONFIDENTIAL ATTORNEYS* EYES ONLY" or "CONFIDENTIAL OUTSIDE COUNSEL ONLY"
(c) During discovery, a PRODUCING PARTY shall have the option to require that all or certain batches of documents and things be treated as containing CONFIDENTIAL or CONFIDENTIAL ATTORNEYS' EYES ONLY information during inspections and to make its designations by marking the particular documents and things with the appropriate legend at the time copies of documents and things are produced.
(d) A party may designate information disclosed at a deposition as CONFIDENTIAL or CONFIDENTIAL ATTORNEYS' EYES ONLY by requesting the reporter to so designate the transcript, or the appropriate portions thereof, at the time of the deposition.
(e) Any party invoking CONFIDENTIAL or CONFIDENTIAL ATTORNEYS' EYES ONLY protection during a deposition may exclude from the room any person who is not entitled to receive information designated CONFIDENTIAL or CONFIDENTIAL ATTORNEYS' EYES ONLY, provided, however, that this paragraph is without prejudice to a party's right to resume a deposition or recover costs and attorneys' fees arising out of improper exclusion of a person from a deposition as a result of improper designation of CONFIDENTIAL or CONFIDENTIAL ATTORNEYS' EYES ONLY information, unless the Court determines that the exclusion was reasonable and made in good faith.
(f) A PRODUCING PARTY shall designate its discovery responses, responses to requests for admissions, briefs, memoranda, and all other papers filed or lodged with the Court and/or served on opposing counsel, as containing CONFIDENTIAL or CONFIDENTIAL ATTORNEYS' EYES ONLY information when such papers are filed, lodged, and/or served. Any document containing CONFIDENTIAL or CONFIDENTIAL ATTORNEYS' EYES ONLY information that is filed or lodged with the Court shall conform with Section 6.
(g) If it is anticipated that any information, document, or thing designated as CONFIDENTIAL or CONFIDENTIAL ATTORNEYS' EYES ONLY will be disclosed at a hearing or trial before the Court, then, at least 10 days before such hearing or trial, the parties shall confer regarding proposed procedures that the parties believe are reasonable, given the public nature of court proceedings, and would allow for an efficient presentation of evidence without compromising such CONFIDENTIAL or CONFIDENTIAL ATTORNEYS' EYES ONLY information, document, or thing. At least five days prior to the date on which it is anticipated that any information, document, or thing that has been designated as CONFIDENTIAL or CONFIDENTIAL ATTORNEYS' EYES ONLY shall be disclosed during a court proceeding, the parties shall contact the Judge's Courtroom Deputy Clerk to alert the Court that a request will be made to the Court to, inter alia: designate the transcript of the hearing appropriately; clear the courtroom of any person not authorized to view or hear the information; receive the information in camera; or otherwise protect the confidentiality of the information, documents, or things at issue.
(h) The parties shall use reasonable care to avoid designating as CONFIDENTIAL or CONFIDENTIAL ATTORNEYS' EYES ONLY any information which is not entitled to such designation or which is generally available to the public.
(i) CONFIDENTIAL information or ATTORNEYS' EYES ONLY CONFIDENTIAL information which is disclosed orally, other than in a deposition or hearing (which are provided for above), shall be identified as CONFIDENTIAL or CONFIDENTIAL ATTORNEYS' EYES ONLY information at the time of such oral disclosure and the PRODUCING PARTY shall within five court days after such disclosure confirm in writing the disclosure as being CONFIDENTIAL information or CONFIDENTIAL ATTORNEYS' EYES ONLY information and ...