The opinion of the court was delivered by: Hon. Rosalyn M. Chapman Magistrate Judge United States District Court
NOTE: CHANGES MADE BY THE COURT KEITH FACCHINO
[PROPOSED] CONFIDENTIAL PROTECTIVE ORDER
Upon agreement and stipulation by the parties herein and pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the Court enters this Stipulated Confidential Protective Order to facilitate document disclosure and production under the Local Rules of this Court and the Federal Rules of Civil Procedure. Unless modified pursuant to the terms contained in this Order, this Order shall remain in effect through the conclusion of this litigation.
In support of this Order, the Court finds that: 1. During the course of discovery in this lawsuit it likely will become necessary to disclose or produce certain documents, information (regardless of how generated, stored or maintained) or tangible things, including financial information, invoices, commercial invoices, purchase orders, packing lists, bills of lading, customer lists, customer lists, marketing plans, product development information, product development plans, third party agreements and similar documents that qualify for protection under standards developed under Rule 26(c) of the Federal Rules of Civil Procedure that a Producing Party in good faith believes contain information of a confidential, proprietary, and/or private nature. Such documents, information or tangible things may be designated as "Confidential Information". Documents, information or tangible things that are available to the public, such as catalogs, advertising materials, information generally known to the trade, and the like, shall not be designated as "Confidential Information";
2. Public dissemination and disclosure of such Confidential Information could severely injure or damage the party disclosing or producing the Confidential Information and could place that party at a competitive disadvantage;
3. Counsel for the party or parties receiving Confidential Information may not presently have sufficient information to accept the representation(s) made by the party or parties producing Confidential Information as to the confidential, proprietary, and/or trade secret nature of such Confidential Information; and
4. Upon agreement of the parties, to protect the respective interests of the parties and to facilitate the progress of disclosure and discovery in this case, the following Order is issued:
IT IS, THEREFORE, ORDERED THAT: 1. "Confidential Information" is defined as financial information, invoices, commercial invoices, purchase orders, packing lists, bills of lading, customer lists, customer lists, marketing plans, product development information, product development plans, third party agreements, and similar information insofar as they qualify for protection under standards developed under Rule 26(c) of the Federal Rules of Civil Procedure (specifically excluding documents, information or tangible things that are available to the public). Except as otherwise indicated below, all documents, discovery responses or depositions containing Confidential Information disclosed, produced or provided by any party during discovery in this litigation may be designated by the producing party as "Confidential" or "Confidential - Attorneys' Eyes Only", as described below, are entitled to confidential treatment as described herein.
2. The "Confidential -- Attorneys' Eyes Only" designation shall be limited to documents, discovery responses or depositions containing Confidential Information that the Producing Party reasonably and in good faith believes is competitively sensitive and the disclosure of which to another Party or non-party would create a substantial risk of serious injury that could not be avoided by less restrictive means. A Producing Party shall only designate as "Confidential -Attorneys' Eyes Only" such information or material the disclosures of which the Producing Party in good faith reasonably considers would be detrimental to its business if known by a competitor of the Producing Party. It includes, without limitation, information that the Producing Party reasonably and in good faith believes constitutes or relates to: (1) trade secrets or other confidential proprietary information; (2) current business/strategic plans; (3) technical product specifications and information; (4) sales, cost and price information, including future sales/financial projections; (5) nonpublic marketing information, including future marketing plans; (6) detailed sales and financial data; (7) the identity of customers and customer lists; (8) confidential agreements or relationships with third parties; (9) licenses and licensing negotiations; (10) materials that a party is under a pre-existing obligation to a third party to treat as confidential; or (11) other information of competitive, technical, financial or commercial significance comparable to the items listed in this paragraph.
3. Confidential Information shall not include: (a) published advertising materials; or (b) materials that on their face show that they have been published to the general public.
4. At any time after the delivery of Confidential Information, counsel for the party or parties receiving the Confidential Information may challenge the "Confidential" or "Confidential - Attorneys' Eyes Only" designation of all or any portion thereof by providing written notice thereof to counsel for the party disclosing or producing the Confidential Information. If the parties are unable to agree as to whether the confidential designation (including the level of confidential treatment) of discovery material is appropriate, the party or parties challenging the designation may file a motion with the Court, seeking such relief with regard to any Confidential Information in dispute as appropriate pursuant to Local Rule 37. The party or parties producing the Confidential Information shall have the burden of establishing that the disputed Confidential Information is entitled to confidential treatment and the level of confidential treatment, i.e., "Confidential" or "Confidential - Attorneys' Eyes Only." All Confidential Information is entitled to confidential treatment pursuant to the terms of this Order unless and until the producing party formally agrees in writing to the contrary, a party fails to timely move for a protective order, or a contrary determination is made by the Court as to whether all or a portion of the Confidential Information is entitled to confidential treatment.
5. Confidential Information shall not be used or shown, disseminated, copied, or in any way communicated to anyone for any purpose whatsoever, except as provided for below.
6. Confidential Information shall be used solely for the prosecution and/or defense of this litigation. Confidential Information shall be disclosed only to ...