The opinion of the court was delivered by: Honorable Carla Woehrle United States Magistrate Judge
STIPULATED PROTECTIVE ORDER NOTE CHANGES MADE BY COURT
Pursuant to Federal Rule of Civil Procedure 26(c) and in order to facilitate production and receipt of information during discovery in the above-referenced action, Plaintiff Bravo Sports ("Bravo") and Defendants Swimways Corporation ("Swimways") and Mackie & Associates ("Mackie"), hereby stipulate, subject to the approval of the Court, to entry of the following Order for the protection of certain trade secret and other confidential research, development or commercial information that may be produced or otherwise disclosed by a party or by non-parties during the course of this action:
1. This Order shall be applicable to and govern without limitation, all information, documents, testimony and/or things, or portions thereof, subject to discovery in this action, which contain non-public, confidential information and/or trade secrets designated pursuant to the terms of this Order, as well as any secondary material, such as pleadings, written discovery, expert reports, notes, summaries or any other materials that contain, describe or reflect such information (collectively referred to herein as "Protected Material"). Any party to this action or non-party producing materials or information in response to a subpoena or otherwise ("Designating Party") may designate for protection under this Order any Protected Material which is furnished, filed or served directly or indirectly, by or on behalf of that party in connection with this proceeding.
2. Such Protected Material may be designated by any Designating Party in the following ways:
a. "CONFIDENTIAL" if it contains confidential research, development, or commercial information that is not available to the general public; or
b. "HIGHLY CONFIDENTIAL -- OUTSIDE COUNSEL ONLY" only if, in the good faith belief of such party and its counsel, the confidential information is so commercially sensitive or confidential that disclosure to persons other than those authorized under Paragraph 9 would have the effect of causing harm to the competitive commercial position of the designating entity or a third party. Such HIGHLY CONFIDENTIAL -- OUTSIDE COUNSEL ONLY material that relates to proprietary design features not included in past or current product designs may be marked with the additional designation "confidential -- OUTSIDE COUNSEL ONLY -competitive design information." Upon the inclusion of such proprietary design features in products sold or offered for sale to third parties not subject to a confidentiality agreement regarding the product, material relating to such design features shall no longer be considered Protected Material.
3. As used herein, "Receiving Party" shall refer to any party or person who receives Protected Material from a Designating Party.
4. Protected Material shall not include any information that:
a. is or becomes lawfully in the possession of the Receiving Party through communications other than production or disclosure in this action; or
b. is or becomes part of the public domain by publication, inclusion in products sold or offered for sale to third parties not subject to a confidentiality agreement regarding the product, or otherwise, and not due to any unauthorized act or omission on the part of the Receiving Party.
5. Documents and things (including, without limitation, optical, magnetic or electronic medium, such as floppy disks, DVDs, CD-ROMs, drives, memory media), other than depositions or other pre-trial testimony shall be designated for protection under this Order by conspicuously affixing the notation "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL --OUTSIDE COUNSEL ONLY" on each page (or in the case of optical, magnetic, electronic medium, or similar mass storage media, on the medium itself) to which the designation applies, as well as to the first page or cover of such document or thing. To the extent practical, the designation shall be placed near any control number that is also affixed to the document or thing.
a. In the event the Designating Party elects to produce materials for inspection, no marking need be made by the Designating Party in advance of the initial inspection. For purposes of the initial inspection, all materials produced shall be considered as "HIGHLY CONFIDENTIAL -- OUTSIDE COUNSEL ONLY," and shall be treated as such pursuant to the terms of this Order. Thereafter, upon selection of specified materials for copying by the inspecting party, the Designating Party shall, within a reasonable time prior to producing those materials to the inspecting party, mark the copies of those materials that contain Protected Material with the appropriate confidentiality marking.
b. No party shall be responsible to another party for disclosure of Protected Material under this Order if the material in question is not labeled or otherwise identified as such in accordance with this Order.
6. Designation of specific portions of deposition transcripts as Protected Material under this Order may be made by a statement that the information is CONFIDENTIAL or HIGHLY CONFIDENTIAL -- OUTSIDE COUNSEL ONLY on the record in the course of the deposition. Upon designation of the transcript on the record during the deposition, all persons to whom access to that category of Protected Material has been denied under the terms of this Order shall leave the deposition during the portion of the deposition during which such Protected Material is discussed. The deposition reporter or other person recording the proceedings shall indicate the confidentiality designations on the transcript but shall not segregate any portion of the transcript of the deposition or hearing which has been stated to contain Protected Material unless counsel for both parties agree to such segregation of the transcript or such segregation is required by the Court. A Designating Party may also designate any portion or all (if appropriate) of the transcript as Protected Material under this Order with reference to the pages and lines of testimony in the transcript, by so advising the deposition reporter (who shall indicate the designations in the transcript) and all parties in writing, within five (5) business days after receipt of the final transcript. Deposition exhibits shall be treated in accordance with any prior designation under this Order, or may be specifically designated under this Order on the record during the deposition or in writing within five (5) business days after the Designating Party has received the deposition exhibits accompanying the final transcript. A transcript, and any of its exhibits not designated under this Order prior to the deposition, shall be treated as HIGHLY CONFIDENTIAL -- OUTSIDE COUNSEL ONLY, unless otherwise designated on the record, until five (5) business days after it has been received by the Designating Party. In the case of testimony or exhibits designated as Protected Material under this Order following conclusion of the deposition, all parties shall mark the appropriate legend on all copies of the deposition transcript and its exhibits and treat the information in accordance with its designation from the date they are notified of such designation. In the event of disagreement about the confidential status of a deposition transcript or exhibit, it shall be treated as HIGHLY CONFIDENTIAL --OUTSIDE COUNSEL ONLY until this Court rules otherwise.
7. All designations of Protected Material under this Order shall be made in good faith by the Designating Party at the time of disclosure, production or tender to the Receiving Party, or at such other time as permitted by this Order.
8. The inadvertent failure to designate Protected Material pursuant to this Order does not constitute a waiver of a claim to such designation, and a party may so designate material thereafter subject to the protections of this Order.
Access to Protected Material
9. "CONFIDENTIAL" Material. Only the following individuals shall have access to materials designated "CONFIDENTIAL," absent the express written consent of the Designating Party or further order of the Court:
a. Persons authorized to receive "HIGHLY CONFIDENTIAL -- OUTSIDE COUNSEL ONLY" material as specified in Paragraph 10 below; and
b. Up to two representatives of the Receiving Party who are assisting counsel in the prosecution or defense of this action and have complied with Paragraph 12.
10. "HIGHLY CONFIDENTIAL -- OUTSIDE COUNSEL ONLY" Material. Only the following individuals shall have access to materials designated "HIGHLY CONFIDENTIAL -- OUTSIDE COUNSEL ONLY," absent the express written consent of the Designating Party or further order of the Court:
a. Outside counsel of record for the parties to this action who have individually entered appearances as counsel of record, including such attorneys, paralegals, technology specialists and clerical employees of their respective law firms assisting them in the litigation, subject to Paragraph 22 of this Order regarding CONFIDENTIAL -- OUTSIDE COUNSEL ONLY -COMPETITIVE DESIGN INFORMATION.
b. Professional litigation support vendors retained by or for the parties for document copying, document coding or computerization services, preparing audiovisual aids (e.g., exhibits, models, graphics and video, and demonstrative exhibits for use in the courtroom), other trial support and/or trial consulting services, including jury research consultants, jury selection consultants, analytical graphics consultants, trial presentation consultants and translators, as well as their staff, stenographic, and clerical employees whose duties and responsibilities require access to such materials, who are not current employees of any party to this litigation or of any direct competitor of any party to this litigation, provided the vendor acknowledges its obligation to keep the information so provided confidential consistent with this order and use the information only as part of performing professional litigation support services requested in this action;
c. The Court, its technical advisor(s) (if appointed), court personnel, the jury, court reporters, and/or videographers engaged in proceedings incident to this action;
d. Expert witnesses and consultants retained by or for the Receiving Party or their counsel, who do not meet the definitions set forth in categories 10a-10c above, and their support staff and clerical employees assisting in the litigation; provided no timely objections have been made under Paragraph 11.
Pre-Approval to Access Protected Material
11. Any independent expert witnesses and consultants identified pursuant to Paragraph 10.e shall be allowed access to Protected Material only after the Receiving Party has complied with the following procedure:
a. Before receiving any Protected Material, the expert or consultant shall be provided a copy of this Order, shall read the Order, and shall acknowledge, by executing the Acknowledgement and Agreement To Be Bound by Protective Order in the form attached hereto as Exhibit A, that he or she has read the Order, understands it, and agrees to be bound by it, and also expressly consents to the jurisdiction of this Court in connection with any proceeding or hearing relating to the enforcement of this Order.
b. Outside counsel for the Receiving Party shall provide a copy of the executed Acknowledgement and Agreement To Be Bound by Protective Order ...