The opinion of the court was delivered by: Rosalyn M. Chapman United States Magistrate Judge
[PROPOSED] STIPULATED PROTECTIVE ORDER
AND RELATED COUNTERCLAIMS
NOTE: CHANGES MADE BY THE COURT
This Protective Order is issued 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 or by further Order of the Court, this Order shall remain in effect both through and after the conclusion of this litigation.
The parties herein anticipate that documents, testimony, and information containing or reflecting confidential, proprietary, trade secret, or commercially sensitive information are likely to be disclosed in this litigation, and request that the Court enter this Order setting forth the conditions for the disclosure, treatment, and use of such information. Therefore, pursuant to Federal Rule of Civil Procedure 26(c), the Court finds good cause for and enters this Protective Order ("Order").
(a) "Confidential Information" means any Discovery Material that is designated as "Confidential" or "Confidential -- Attorneys' Eyes Only" as provided for in this Order. Confidential Information may be incorporated within or include documents, tangible things, and witness testimony.
(b) "Discovery Material" means all information, including from any non-party to this action, regardless of the medium or manner generated, stored, or maintained (including, among other things, testimony, transcripts, or tangible things) that is produced, disclosed, or generated in connection with discovery in this matter.
(c) "Party" means any party to this action, including all of its officers, directors, and employees.
(d) "Producing Party" means any Party or third party who discloses or produces any Discovery Material in this action. Any third party invoking the protections of this Protective Order agrees that such party has read and understood the Protective Order and shall sign the acknowledgment attached as Exhibit A.
(e) "Receiving Party" means any Party who receives Discovery Material from a Producing Party.
(a) The protections conferred by this Order cover and govern the designation of, use, and disclosure of Confidential Information and related Discovery Material, including any information copied or extracted therefrom, and all copies, excerpts, summaries, or compilations thereof, including testimony, conversations, or presentations by Producing Parties or Receiving Parties or their counsel in Court or in other settings that might reveal Confidential Information.
(b) Confidential Information shall be used solely for this litigation, and not for any other purpose whatsoever, including without limitation any other litigation, patent prosecution or acquisition, or any business or competitive purpose or function. Confidential Information shall not be distributed, disclosed or made available to anyone except as expressly provided in this Order.
(c) Any Producing Party who designates Confidential Information under this Order shall do so only with a good faith belief that the designated material is Confidential Information that is protectable under Federal Rule of Civil Procedure 26(c) and the terms of this Order. If it comes to a Producing Party's attention that designated material does not qualify for protection at all, or does not qualify for the level of protection asserted, the Producing Party must promptly notify all other parties that it is withdrawing or changing the designation.
(d) Any person challenging a Producing Party's designation of Confidential Information under this Order shall do so only with a good faith belief that designated material is not protectable Confidential Information under Federal Rule of Civil Procedure 26(c) and the terms of this Order.
3. LIMITATIONS AND PRESERVATION OF RIGHTS
(a) Nothing in this Order shall prevent or restrict a Producing Party's own disclosure or use of its own Confidential Information for any purpose.
(b) Nothing in this Order shall preclude any person or party from disclosing Confidential Information to an individual who prepared the Confidential Information or is already in possession of the Confidential Information.
(c) Nothing in this Order shall restrict in any way the use or disclosure of Confidential Information by a Receiving Party: (a) that is or has become publicly known through no fault of the Receiving Party; (b) that is lawfully acquired by or known to the Receiving Party independent of the Producing Party; (c) that has been previously produced, disclosed or provided by the Producing Party to any other party without an obligation of confidentiality and not by inadvertence or mistake; (d) with the consent of the Producing Party; or (e) pursuant to order of the Court.
(d) Nothing in this Order shall be construed to prejudice any Party's right to use any Confidential Information in Court or in any Court filing with consent of the Producing Party or Order of the Court.
(e) This Order is without prejudice to the right of any Party or non-party to seek further or additional protection of any Confidential Information, to de-designate Confidential Information, or to modify this Order in any way, including, without limitation, seeking: (1) a protective order that certain Confidential Information or Discovery Material not be produced at all; (2) to compel the disclosure of or de-designate Confidential Information or Discovery Material; or (3) to modify, add to, or remove provisions set forth in this Order.
4. ACCESS TO AND USE OF CONFIDENTIAL INFORMATION
(a) Secure Storage. Confidential Information must be stored and maintained by a Receiving Party at a location and in a secure manner that ensures that access is limited to the persons authorized under this Order.
(b) Legal Advice Based on Confidential Information. Nothing in this Order shall prevent Counsel from advising their clients with respect to this litigation based in whole or in part upon Confidential Information, provided Counsel does not disclose the Confidential Information itself except as provided in this Order.
5. DESIGNATING CONFIDENTIAL INFORMATION
(a) Available Designations. A Producing Party (including third parties) may designate its own Discovery Material with any of the following designations, provided that it meets the requirements for such designations as provided for herein: "CONFIDENTIAL" or "CONFIDENTIAL -- ATTORNEYS' EYES ONLY." Any third party invoking the protections of this Protective Order agrees that such party has read and understood the Protective Order and shall sign the acknowledgment attached as Exhibit A.
(b) Written Discovery and Documents and Tangible Things. Written discovery, documents, and tangible things that meet the requirements for the confidentiality designations listed in Paragraph 5(a) may be so designated by placing the appropriate designation on every page of the written material. In the event that original documents are produced for inspection, the Producing Party may produce the original documents for inspection with a temporary designation that is suitable under the circumstances, provided that copies of the original documents shall be similarly designated by placing the appropriate legend on the copies when they are produced to or by the Receiving Party.
(c) Depositions and Testimony. Parties or testifying persons or entities may designate depositions and other testimony with the appropriate designation (i) by indicating on the record at the time the testimony is given or (ii) by sending written notice that the testimony is designated within thirty (30) calendar days of receipt of the transcript of the testimony. Whether or not any designation is made at the time the testimony was given, all testimony shall be treated as if it had been designated "CONFIDENTIAL -- ATTORNEY'S EYES ONLY" from the date of the testimony until thirty (30) calendar days after receipt of the transcript of the testimony. Testimony not designated either orally at the time of the testimony or by written notice to the Parties within thirty (30) calendar days after receipt of the transcript of the testimony shall be deemed not to be Confidential Information, subject, however, to the other terms of this Order. Any designated Discovery Material that is used in the taking of a deposition shall remain subject to the provisions of this Order, along with the transcript pages of the deposition testimony dealing with such Discovery Material. In the event the deposition is videotaped, the original and all copies of the videotape shall be marked by the video technician to indicate that the contents of the videotape are subject to this Order, substantially along the lines of "This videotape contains confidential testimony used in this case and is not to be viewed or the contents thereof to be displayed or revealed except as permitted by the Protective Order, by order of the Court, or pursuant to written stipulation of the parties."
6. DISCOVERY MATERIAL DESIGNATED AS "CONFIDENTIAL -- ATTORNEYS' EYES ONLY"
(a) A Producing Party may designate Discovery Material as CONFIDENTIAL -- ATTORNEYS' EYES ONLY if it contains or reflects information that is extremely confidential and/or sensitive in nature and the Producing Party reasonably believes that the disclosure of such Discovery Material is likely to cause economic harm or significant competitive disadvantage to the Producing Party.
(b) Discovery Material designated as "CONFIDENTIAL -- ATTORNEYS' EYES ONLY" may be disclosed only to:
(i) The Receiving Party's outside litigation counsel of record as of the signing of this protective order and their staff;
(ii) Any expert or consultant retained by the Receiving Party to assist in this action (as well as members of such person's staff to whom disclosure is reasonably necessary for this litigation), provided that disclosure is only to the extent necessary to perform such work; and provided that: (a) each such person (including staff members) has signed the acknowledgement form annexed hereto as Exhibit A, (b) a copy of the signed acknowledgement form has been provided to all outside counsel of record, and (c) no ...