The opinion of the court was delivered by: Jeffrey W. Johnson United States Magistrate Judge
STIPULATED PROTECTIVE ORDER NOTE CHANGES BY THE COURT
Whereas pretrial discovery in this action involving Plaintiff and Counterdefendant IRISE ("iRise") and Defendant and Counterclaimant AXURE SOFTWARE SOLUTIONS, INC. ("Axure"), shall necessarily involve the disclosure of trade secrets or confidential research, development, or commercial information of the parties and of non-parties from whom discovery may be sought; and
Whereas iRise and Axure stipulate pursuant to Rule 26(c) of the Federal Rules of Civil Procedure -- subject to the approval of the Court -- to the following Protective Order:
1.1 This Protective Order shall govern any information, document or thing designated pursuant to Paragraph 2 of this Protective Order, produced in this case, including all designated deposition testimony, all designated testimony taken at a hearing or other proceeding, all designated interrogatory answers, documents and other discovery materials and things, whether produced informally or in response to interrogatories, requests for admissions, requests for production of documents or other formal method of discovery.
1.2 This Protective Order shall also govern any designated information, document or thing produced in this case pursuant to required disclosures under any federal procedural rule, local rule, and any supplementary disclosures thereto.
1.3 This Protective Order shall apply to the parties and any nonparty from whom discovery is sought and who desires the protection of this Protective Order.
1.4 This Protective Order shall be binding upon the parties and their attorneys, successors, executors, personal representatives, administrators, heirs, legal representatives, assigns, subsidiaries, divisions, employees, agents, independent contractors, or other persons or organizations over which they have control.
2.1 Each party shall have the right to designate as "Confidential" and subject to this Protective Order any information, document or thing produced by it in this case which contains, reflects, or otherwise discloses confidential technical, business and/or financial information. This designation shall be made by marking each page or thing containing Confidential information with the legend CONFIDENTIAL (or like designation) prior to its production or, if inadvertently produced without such legend, pursuant to the procedure set forth in Paragraph 15.
2.2 Each party shall have the right to designate as "Attorneys' Eyes Only," restricted to review by outside attorneys and others specified in Paragraph 4.2 only and subject to this Protective Order, any information, document or thing produced in this case which contains, reflects or otherwise discloses trade secrets, current research and development or other competitively sensitive information. Such "Attorneys' Eyes Only" information, documents and things may include, without limitation, currently competitive trade secrets, confidential technical information, technical practices, methods, or other know-how, minutes of Board meetings, pricing data, financial data, sales information, customer-confidential information, agreements or relationships with non-parties, market projections or forecasts, strategic business plans, selling or marketing strategies or new product development, testing, manufacturing costs or information about employees. This designation shall be made by marking each page or thing containing Attorneys' Eyes Only information with the legend ATTORNEYS' EYES ONLY (or like designation) prior to its production or, if inadvertently produced without such legend, pursuant to the procedure set forth in Paragraph 14.
2.3 The parties will use reasonable care to avoid designating any information, documents or things Confidential that are generally available to the public. The parties will also use reasonable care to avoid designating any information, documents or things "Confidential" or "Attorneys' Eyes Only" for which the designating party does not have a good faith belief that the information, documents or things satisfy the criteria set forth in this Paragraph. To the extent that material is marked "Confidential" or "Attorneys' Eyes Only" (collectively "Designated Information"), such material shall be revealed to or used only by persons authorized to receive Designated Information pursuant to Paragraph 4 and shall not be communicated in any manner, either directly or indirectly, to any person or entity not permitted disclosure pursuant to this Protective Order. Any copies of such material, abstracts, summaries or information derived therefrom, and any notes or other records regarding the contents thereof shall also be deemed Confidential or Attorneys' Eyes Only and the same terms regarding confidentiality of these materials shall apply as apply to the originals.
2.4 With respect to all materials provided for inspection by a party's counsel, designation need not be made until copies of the materials are requested after inspection and selection by counsel. Making documents and things available for inspection shall not constitute a waiver of any claim of confidentiality, and all materials provided for inspection by a party's counsel shall be treated as though designated Attorneys' Eyes Only from the time of the inspection until otherwise designated pursuant to this Protective Order or produced without a designation.
3.Limit on Use and Disclosure of Designated Information.
3.1 All recipients of Confidential or Attorneys' Eyes Only information pursuant to this Protective Order shall use any Designated Information governed by this Protective Order only in connection with the prosecution or defense of this case, and for no other purpose whatsoever, except by consent of the parties or order of the Court and shall maintain the Designated Information with appropriate safeguards in accordance with the terms of this Protective Order. No party or other person shall disclose or release to any person not authorized under this Protective Order any Designated Information governed by this Protective Order for any purpose, or to any person authorized under this Protective Order for any other purpose. The party or parties receiving Designated Information shall not under any circumstances sell, offer for sale, advertise, or publicize Designated Information or any information contained therein.
3.2 Counsel for a party may give advice and opinions to his or her client regarding this litigation based on his or her evaluation of designated "Confidential" or "Attorneys' Eyes Only" information received by the party - provided that such rendering of advice and opinions shall not reveal the content of such Designated Information except by prior written agreement with counsel for the producing party. Counsel receiving "Confidential" or "Attorneys' Eyes Only" information may not use such Designated Information to provide advice or opinions to facilitate prosecution of any patents or to otherwise attempt to secure patent claims (e.g., reissue, reexamination, and certificates of correction).
3.3 Any outside counsel, expert or consultant employed by the receiving party who reviews Attorneys' Eyes Only information produced by the producing party shall maintain a log of the specific Bates labeled pages, items, or portions thereof that were reviewed. Such log shall not be required to be disclosed to any party other than the party that produced the Attorneys' Eyes Only information, and shall be disclosed to that producing party only following the conclusion of the litigation within 30 days of a request for the log by the producing party. Such reviewing person shall not, in any continuation, divisional, original, reexamination, or reissue application related to programming environments for simulations of computer applications, draft, prosecute, or otherwise assist in the preparation or prosecution of any patent claims related to systems and methods for simulations of computer applications that would be infringed, either directly, contributorily or by inducement, literally or by equivalents, by any method or apparatus disclosed in the Attorneys' Eyes Only information reviewed by that person as disclosed in the log.
a. The prosecution bar set forth in this Paragraph 3.3 shall expire for each such person one year after the earlier of: (i) the entry of a final non-appealable or non-appealed judgment as to the party that such person represents; or (ii) the complete settlement of all claims or counterclaims related to United States Patent No. 7,349,837 as to the party that such person represents.
b. The prosecution bar set forth in this Paragraph 3.3 shall not prohibit, restrict, or in any way limit any person's ability to participate in a reexamination proceeding where such participation is not undertaken on behalf of an owner of the patent.
3.4 The attorneys of record for the parties and other persons receiving Designated Information governed by this Protective Order shall exercise reasonable care to ensure that the Designated Information governed by this Protective Order is (i) used only for the purposes specified herein and
(ii) disclosed only to authorized persons.
4.Disclosure of Designated Information.
4.1 Information, documents or things designated "Confidential" shall be disclosed by the recipient thereof only to:
a. the outside attorneys of record for the parties and their partners, attorney employees, and their authorized administrative, clerical and legal assistant staff;
b. up to five (5) employees, principals, directors or officers of iRise having responsibility for providing oversight of or assistance in the litigation;
c. up to five (5) employees, principals, directors or officers for Axure having responsibility for providing oversight of or assistance in the litigation;
d. consultants or experts who are not employees of any party to this action, and their staffs, retained by the parties or their attorneys for purposes of this case, subject to the procedures of Paragraph 6;
e. the Court and Court personnel;
f. court reporters employed in connection with this case;
g. outside copying and computer services necessary for document handling, and other litigation support personnel (e.g., graphic designers and animators), who are contractually bound not to disclose such documents and information by the parties retaining them ; and
h. translation services necessary for translating documents in this case.
4.2 Information, documents or things designated "Attorneys' Eyes Only" shall ...