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Surfware, Inc. v. Celeritive Technologies

January 8, 2009


The opinion of the court was delivered by: Hon. A. Howard Matz



Complaint Filed: October 14, 2008

Plaintiff Surfware, Inc. ("Surfware") and Counterclaim Defendant Stephen Diehl, and Defendants Celeritive Technologies, Inc., Terry Sorensen, Glenn Coleman, and Evan Sherbrooke (collectively "Celeritive") each have information relevant to the subject matter of this lawsuit that is subject to discovery but which the parties agree should not be disclosed to the public generally or, in some cases, to the requesting party. For the reasons set forth in the "Good Cause Statement" herein and after review of the Court's Order Re: Protective Orders and Treatment of Confidential Information, the parties have agreed to this Protective Order on the terms set forth below. It appearing to the Court that the parties have agreed to the terms of an appropriate Protective Order to govern discovery and pretrial proceedings and settlement negotiations in this action, and have demonstrated good cause for the entry of such Protective Order:


This case involves, inter alia, an alleged misappropriation of trade secrets relating to computer aided milling technology including source code, confidential product development information, and customer lists. All parties to this suit may have non-public documents, information, and other materials in their possession, custody, or control pertaining to this technology that will be subject to discovery herein. Some of these items are highly sensitive and confidential because they contain information which, if released to the public or to a competitor, would cause harm to the parties' business and competitive interests. This material containing sensitive information includes software source code, software architecture materials, research and development records, confidential business and marketing plans, confidential customer lists and related customer information, confidential sales records and financial data. The parties have jointly drafted this proposed protective order, which the parties respectfully seek to be entered by the Court, in order to prevent harmful disclosure of their confidential and sensitive business and technical information, while balancing the public's right to acquire information that properly falls outside the scope of the parties' protectable, confidential interests.

The parties agree that disclosure of information designated as Confidential-Attorneys Eyes Only as set forth herein could put the producing party at a competitive disadvantage if the information became known to the receiving party. The parties further agree that adoption and adherence to this Protective Order will facilitate an orderly and cost-effective discovery process and preparation for trial or settlement and that the Confidential Information will not be used for any purpose that is not directly related to this litigation.


1. This Order shall apply to all information produced during discovery and settlement negotiations in this action that shall be designated by the party or person producing "Confidential" or "Confidential-Attorneys Eyes Only" (collectively "Confidential Information"). This Order shall not apply to information that, before disclosure, is properly in the possession or knowledge of the party to whom such disclosure is made, or is public knowledge. The restrictions contained in this Order shall not apply to information that is, or after disclosure becomes, public knowledge other than by an act or omission of the party to whom such disclosure is made, or that is legally acquired from a source not subject to this Order.

2. If an exhibit; pleading; interrogatory answer or admission (collectively "discovery response"); document or thing; or a deposition transcript; other transcript of testimony, or declaration or affidavit (collectively "testimony") contains information considered confidential by a party, such exhibit, pleading, discovery response, document or thing, or testimony shall be designated "Confidential" or "Confidential-Attorneys Eyes Only" by the party contending there is Confidential Information therein.

3. In connection with an exhibit, pleading, discovery response, document; or thing, testimony or other court submission, the legend "Confidential" or "Confidential-Attorneys Eyes Only" shall be affixed before the production or service upon a party.

4. As a general guideline, a document should be designated "Confidential" when it contains confidential technical or other information that may be reviewed by the receiving party, technical experts, and other party representatives, but must be protected against disclosure to third parties or to the general public. A document may be designated "Confidential-Attorneys Eyes Only" only when it contains highly sensitive information, not publicly available or readily ascertained through public means, that if disclosed would put the producing party at a competitive disadvantage, including without limitation the following: financial information; cost information; pricing information; sales information; customer lists; licenses; supplier and vendor information; technical and developmental information about a party's products; business plans; marketing strategy; new product plans and competitive strategies; and trade secrets, as that term is defined in California Civil code § 3426.1, which is incorporated herein by this reference.

5. All Confidential Information that has been obtained from a party during the course of this proceeding shall be used only for the purpose of this litigation and not for any other business purpose, proceeding, litigation, or other purpose whatsoever. Further such information may not be disclosed to anyone except as provided in this Order. Counsel for a party may give advice and opinions to their client based on evaluation of information produced by the other party and designated as "Confidential-Attorneys Eyes Only" provided that such rendering of advice and opinions shall not reveal the content of such information except by prior agreement with opposing counsel.

6. Except as otherwise agreed in writing, all documents, or any portion thereof, produced for inspection only (i.e., copies have not yet been provided to the receiving party) shall be deemed "Confidential-Attorneys Eyes Only." If a copy of any such document is requested after inspection, the document shall be deemed "Confidential" or "Confidential-Attorneys Eyes Only" only if labeled or marked in conformity with paragraph 3, with access and dissemination limited as set forth in paragraphs 10-14.

7. Information disclosed at a deposition or other testimony may be designated as "Confidential" or "Confidential-Attorneys Eyes Only" at the time of the testimony or deposition, or within fourteen (14) days following receipt of the transcript, and shall be subject to the provisions of this Order. Additional information disclosed during a deposition or other testimony may be designated as "Confidential" or "Confidential-Attorneys Eyes Only" by notifying the other party, in writing, within fourteen (14) days after receipt of the transcript, of the specific pages of the transcript that should also be so designated. Unless otherwise agreed on the record of the deposition or other testimony, all transcripts shall be treated as "Confidential-Attorneys Eyes Only" for a period of fourteen (14) days after their receipt, and the transcript shall not be disclosed by a non-designating party to persons other than those persons named or approved according to paragraphs 10-14 to review documents or materials designated "Confidential-Attorneys Eyes Only" on behalf of that non-designating party.

8. The parties further acknowledge that this Stipulated protective order creates no entitlement to file confidential information under seal; the applicable Federal Rules, local rules (including Local Rule 79-5) and other applicable Federal or State statutory law and rules shall be followed in the event a party seeks permission from the Court to file material under seal, seal a trial or hearing in this matter, or otherwise restrict non-party access to these proceedings.

9. As used in this Protective Order, "Trial Counsel" refers exclusively to the following:

a. For Defendant: The attorneys, paralegals, agents and support staff of Perkins Coie LLP and Perkins Coie Brown & Bain P.A..

b. For Plaintiff: The attorneys, paralegals, agents and support staff of Jackson Lewis, LLP; Wennergren Law Offices; and ...

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