ORDER RE STIPULATED CONFIDENTIALITY AGREEMENT; EXHIBIT A
IT IS HEREBY STIPULATED AND AGREED, subject to the approval of the Court, by and between Plaintiff and Counter-Defendant Clean Energy Fuels Corporation ("Clean Energy") and Defendant and Counter-Claimant Applied LNG Technologies USA, LLC ("ALT"), through their respective counsel of record, as follows:
WHEREAS, the parties recognize that the preparation and trial of the above-captioned action (the "Action") will require the discovery of business records and other material claimed by one or both of the parties to contain trade secret, confidential or proprietary information that should not be disclosed, except in a highly restricted fashion. The parties are engaged in proprietary activities which could be jeopardized if non-public financial data, business strategies, product or operational information or other highly sensitive confidential information or documents were disclosed publically.
WHEREAS, discovery proceedings herein necessarily involve the production of certain information which the parties believe to constitute trade secret, confidential or proprietary information, including commercially sensitive, financial and/or business information. Some information of that type has already been requested in discovery sought by the parties.
WHEREAS, the parties desire to litigate this Action without jeopardizing their business, commercial or proprietary interests in the confidentiality of this information, and submit that good cause therefore exists for the entry of the following Revised Stipulated Confidentiality Agreement ("Stipulation") which shall govern the use, handling and disclosure of all confidential documents, material, testimony and information produced or given in this Action designated to be subject to this Stipulation in accordance with the following terms:
A. Confidential Information
1. In connection with discovery proceedings in this Action, all confidential, commercial or proprietary information disclosed, furnished or submitted voluntarily or pursuant to formal discovery demands, subpoena or Court order, by or on behalf of a party or non-party in this Action, if properly designated, shall be used solely in connection with pretrial proceedings, preparation for trial, trial or other proceedings in this Action.
2. Any party may designate any information or material which that party in good faith believes is confidential, or information or material furnished to it by third parties which information or material is not publicly known, and which the producing party would not normally reveal to third parties or would cause third parties to maintain in confidence (hereinafter referred to as "Confidential Information"). That shall be accomplished by marking such Confidential Information with the following or equivalent legend: "CONFIDENTIAL" or "CONFIDENTIAL-Subject to Protective Order" (hereafter referred to as "Confidential" in this Stipulation) or "CONFIDENTIAL -- ATTORNEY'S EYES ONLY" or "CONFIDENTIAL-Subject to Protective Order-ATTORNEY'S EYES ONLY" (hereafter referred to as "Attorney's Eyes Only" in this Stipulation). In so doing, the designating party shall, in good faith, reasonably believe that such information or material contains or relates to non-public, personal, financial, confidential, proprietary or commercially sensitive information that requires protection afforded hereunder. By designating a document, thing, material, testimony or other information derived therefrom as "Confidential" or "Attorney's Eyes Only" under the terms hereof, the party making such designation is certifying to the Court that there is a good faith basis both in law and in fact for the designation within the meaning of Rule 26 (g) of the Federal Rules of Civil Procedure ("FRCP").
3. Such notation shall be placed on every page of each document so designated, or on the portion(s) of each document so designated. Where it is not feasible to stamp the document, the document shall be appropriately labeled or otherwise marked with the appropriate designation.
4. In the case of "Confidential" or "Attorney's Eyes Only" material disclosed or produced in a non-paper medium (e.g., videotape, DVD, CD, audiotape, computer disc, etc.), the confidentiality legend should be affixed on the medium, if possible, and its container, if any, so as to clearly give notice of the designation. If any such "Confidential" or "Attorney's Eyes Only" material produced in a non-paper medium is printed out by a receiving party, the receiving party must mark each page of the printed version with the applicable confidentiality legend.
5. Material designated as "Confidential" or "Attorney's Eyes Only", or information derived therefrom, shall be used solely for the purpose of the prosecution, defense, trial or settlement of this Action and shall not be used for any business or other purpose, and shall not be communicated or disseminated in any manner, directly or indirectly, to anyone other than a person qualified under the terms of this Stipulation.
B. Access To Materials With "Confidential" Designation
1. Except with the prior written consent of the individual or entity asserting "Confidential" treatment, or pursuant to prior Court order after proper notice, any document, material, transcript or pleading given "Confidential" treatment under this Stipulation, and any information contained in or derived from any such materials (including but not limited to, all deposition testimony that refers, reflects or otherwise discusses any information designated "Confidential" hereunder), may not be disclosed other than in accordance with this Stipulation.
2. Access to documents or other materials designated "Confidential" hereunder shall be restricted to the following "qualified persons" designated below:
a. Counsel for the parties, whether retained counsel or in-house counsel ("Counsel"), and employees, agents or independent companies or individuals that have been directly engaged by Counsel to assist such Counsel in this Action in connection with performing services such as copying or other litigation support services, paralegal assistants, stenographic, clerical or other staff working under the supervision of Counsel;
b. Experts or consultants retained to perform services in connection with the Action, with disclosure only to the extent necessary to perform such work, and provided that such person(s) signs the Confidentiality Agreement attached hereto as Exhibit A;
c. The parties to this Action, including their officers, directors, members, employees and agents whose assistance is reasonably required in the preparation of this Action for trial, and whose access to the confidential information and materials is reasonably necessary to render such assistance, and provided that such person(s) signs the Confidentiality Agreement attached hereto as Exhibit A;
d. Any person who is scheduled to testify as a witness at a deposition or Court proceeding in this Action for the purpose of assisting in the witness's preparation, and provided that such person(s) signs the Confidentiality Agreement attached hereto as Exhibit A;
e. Any person who actually is testifying as a witness at a deposition or Court proceeding in this Action and provided that the person is shown the information during testimony and asked questions about the information;
f. The Court and Court personnel, including any court reporters involved in taking or transcribing testimony in this Action or other such proceedings as are necessarily incident to the preparation or trial of this Action; and
g. Such other person(s) as the parties to this Action shall agree in writing or the Court designates in the interest of justice, upon terms that the Court deems proper.
3. Each qualified person described in subparagraphs b., c., and/or d. of Paragraph 2 above, to whom "Confidential" materials are to be furnished, shown or disclosed, shall first be presented by the disclosing party with a copy of this Stipulation, and shall be required to execute a copy of the Confidentiality Agreement attached hereto as Exhibit A, acknowledging that he or she has read the Stipulation and shall abide by their terms. Further, such persons who receive "Confidential" materials shall take reasonable ...