The opinion of the court was delivered by: Honorable Howard R. Lloyd United States Magistrate Judge
STIPULATED PROTECTIVE ORDER CONCERNING CONFIDENTIAL DISCOVERY MATERIALS
This action is likely to involve discovery of documents and testimony containing trade secrets and other confidential research, development, financial, and commercial information of the parties to this action and third parties who may be subpoenaed to provide deposition testimony and documents, including confidential and commercially sensitive information relating to business strategies, manufacturing and distribution capabilities, sales, costs, pricing, profitability, customers, suppliers, and other business and financial data, which, if disclosed other than as specified herein, will pose a significant risk of injury to the legitimate business interests of the disclosing party. This Order is necessary to protect the legitimate business interests of the disclosing parties in such information, and good cause exists for the entry of this Order.
Therefore, pursuant to Rule 26 of the Federal Rules of Civil Procedure, discovery taken in the above-captioned case shall be conducted subject to this Stipulated Protective Order Concerning Confidential Discovery Materials (the "Protective Order"):
1. Any party or non-party that is called upon to provide discovery in this action may designate any document, electronically stored information, testimony, discovery request, discovery response, motion, filing with the Court, thing, or any portion thereof (collectively, "Discovery Materials"), produced by any party or non-party, as CONFIDENTIAL under the terms of this Protective Order.
2. A party or non-party may designate as CONFIDENTIAL any Discovery Materials that it reasonably and in good faith believes contain or reflect confidential material, including without limitation those materials identified in Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure and any materials that the party or non-party reasonably and in good faith believes are not public.
3. Discovery Materials containing CONFIDENTIAL information as defined herein shall be so designated by labeling the Discovery Materials (on each page for multi-page documents or, in the case of computer disc, tape, or other media, on the cover of each disc, tape, or other media) with the legend "CONFIDENTIAL". Except as otherwise agreed by the parties, such marking shall be done before such Discovery Materials are reproduced, made available for inspection, served, or filed with the Court.
4. For testimony given in deposition, the party or non-party offering or sponsoring the testimony shall identify on the record, before the close of the deposition, any portions of the testimony that qualify as CONFIDENTIAL. When it is impractical to identify separately each portion of testimony that is entitled to protection, and when it appears that substantial portions of the testimony may qualify for protection, the party or non-party that sponsors, offers, or gives the testimony may invoke on the record (before the deposition or proceeding is concluded) a right to have up to 20 days to identify the specific portions of the testimony as to which protection is sought. Only those portions of the testimony that are appropriately designated for protection within the 20 days shall be covered by the provisions of this Protective Order. Transcript pages containing CONFIDENTIAL Discovery Materials must be separately bound by the court reporter, who must affix to the top of each such page the legend "CONFIDENTIAL," as instructed by the Party or nonparty offering or sponsoring the witness or presenting the testimony.
5. Testimony or information offered at a conference or hearing may be designated as CONFIDENTIAL by making a statement to that effect on the record during the conference or hearing. Alternatively, if no such statement of designation is made, a party wishing to designate in whole or in part the conference or hearing, and any transcript or recording thereof, as CONFIDENTIAL shall notify all other parties in writing of such designation, within FIVE (5) business days of such conference or hearing. The parties may modify the procedures in this paragraph by mutual agreement without further order of this Court.
6. Discovery Materials designated as CONFIDENTIAL, and any summaries, abstracts, or documents derived from such Discovery Materials, shall be used by the parties solely in connection with this litigation, and not for any business, competitive, legal, or governmental purpose or function, including in connection with any application pending before the U.S. Patent & Trademark Office or other patent office, and such Discovery Materials shall not be disclosed to anyone except as provided herein.
7. Unless otherwise ordered by the Court, Discovery Materials designated CONFIDENTIAL that are produced pursuant to this Protective Order may be disclosed or made available only to outside counsel for the parties, and to the parties and/or officers, members, directors, and employees of the parties to whom access to CONFIDENTIAL Discovery Materials is reasonably necessary for the purpose of this litigation, including the professional, paralegal, clerical, secretarial or other employees thereof, and to the "qualified persons" designated below:
a. this Court, any juror, any court reporter, or videographer
employed in this action, or any other entity or person authorized by this Court or required by law;
b. any commercial copy service, translator, or data entry and computer support organization hired by and assisting counsel for a party; and
c. any outside expert or consultant (together with his/her staff), including outside counsel not of record, retained to assist in the prosecution or defense of this action or any exhibit preparation service (together with its staff) retained to prepare exhibits, subject to the terms of Paragraph 8.
8. Any outside expert or consultant, including any outside counsel not of record, to whom a party desires to disclose CONFIDENTIAL Discovery Materials pursuant to Paragraph 7, shall sign a CONFIDENTIALITY UNDERTAKING in the form attached hereto as Exhibit A prior to any such disclosure.
9. In the event any party or any other individual authorized under this Protective Order to receive CONFIDENTIAL Discovery Materials is served with a subpoena or other judicial process demanding the production or disclosure of any Discovery Materials designated CONFIDENTIAL, such party or individual shall: (a) provide all parties with a copy of such subpoena or other judicial process promptly, but under no circumstances later than the earlier of FIVE (5) business days following receipt thereof or THREE (3) business days prior to the return date of such subpoena or other judicial process; and (b) cooperate with the parties to protect any CONFIDENTIAL Discovery Materials from production or disclosure.
10. Nothing herein is intended in any way to restrict the ability of the receiving party to use CONFIDENTIAL Discovery Materials produced to it in examining or cross-examining any current or former employee, expert, consultant of the producing party, witness to any of the events at issue, or any person who ...