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Gilmour v. International Business Machines Corp.

October 14, 2009

KELLI GILMOUR, AN INDIVIDUAL, PLAINTIFF,
v.
INTERNATIONAL BUSINESS MACHINES CORPORATION, A NEW YORK CORPORATION; AND DOES 1 THROUGH 10, DEFENDANTS.



The opinion of the court was delivered by: Hon. Alicia G. Rosenberg

PROTECTIVE ORDER RE: CONFIDENTIALITY OF DOCUMENTS AND INFORMATION [DISCOVERY MATTER]

Complaint Filed: May 8, 2009

Based upon the Stipulation and [Proposed] Protective Order Re: Confidentiality of Documents and Information submitted by parties, and for good cause shown:

1. This stipulated confidentiality agreement and protective order ("Protective Order") shall govern the production, use and handling of confidential documents and information produced by any Party in any form in the above-captioned litigation (collectively "Material"). Any Party or non-party may designate as "Confidential" any documents, information or other things that contain proprietary business information not previously made available to the public, which any Party or non-party contends should be protected from disclosure pursuant to this Protective Order.

2. Any Party or non-party producing or filing a document or thing in this proceeding may designate it at the time of its production as subject to this Protective Order by designating the Material as Confidential by typing or stamping on each page so designated (without obscuring or defacing the Material) "Confidential," "Confidential Subject to Protective Order" or words of similar import ("Basic Confidential Material"). If a Party reasonably believes that the particular material to be produced or disclosed is of such a highly sensitive nature that its disclosure should be limited only to those persons identified in Paragraph 7, below, that Party shall stamp on or otherwise permanently affix to such Material (without obscuring or defacing the Material) the designation "Confidential -- Counsel's Possession Only -- Subject to Protective Order" or words of similar import ("Counsel's Possession Only Confidential Material"). Basic Confidential Material and Counsel's Possession Only Confidential Material shall hereinafter collectively be referred to as "Confidential Material." The Parties agree to exercise good faith in evaluating whether materials should receive any Confidential Material designation pursuant to this Protective Order.

a. Should any Party, counsel for any Party, or any person or entity not a party to this action who obtains access to any Confidential Material make copies or duplicates of any Confidential Material, or any portion thereof, and if the Confidential Material designation is not clearly reproduced on the copies or duplicates as a result of the copying process, then the appropriate designation, Basic Confidential Material or Counsel's Possession Only Confidential Material, as the case may be, shall in that event also be stamped or affixed to such copies or duplicates, and the references in this Protective Order to Confidential Material shall be deemed to include and to apply to such copies or duplicates.

b. Should any Party, counsel for any Party, or any person or entity not a party to this action who obtains access to Confidential Material make extracts or summaries of such Confidential Material, such extracts or summaries shall also be stamped with the appropriate designation. Such extracts or summaries shall also constitute Confidential Material even if the extracts or summaries are not marked with a Confidential designation, and the references in this Protective Order to Confidential Material shall apply to such extracts or summaries. This provision shall not include the notes of counsel.

c. This Protective Order shall apply to all Confidential Material so designated whether produced informally or in response to formal discovery requests, subpoenas or at deposition.

3. All Confidential Material subject to this Protective Order shall be used by the persons to whom it is disclosed solely for the prosecution and/or defense of the above-captioned action (the "Litigation"); it shall not be used by such persons for any other purpose not directly related to the Litigation, and at no time shall any Confidential Material be provided to any representative of the electronic, digital or print media, excluding those persons designated as experts and consultants pursuant to Paragraphs 6(c) and 7(b). The Confidential Material shall not be used by any persons to whom disclosures are made, other than by the Party that produced it, for business or competitive purposes or in any other litigation.

4. If, at any time, one of the Parties disagrees with or challenges the grounds or basis for the designation of any document or information as Basic Confidential Material or Counsel's Possession Only Confidential Material, that Party shall nevertheless treat and protect such Material in accordance with this Protective Order until and unless all Parties have agreed in writing, or an order of the Court has been entered and become enforceable, which provides that such challenged Confidential Material may be used or disclosed in a manner different from that specified in this Protective Order. In the event of such a disagreement, the Party challenging the designation will have the burden of pursuing any relief desired.

5. Nothing in this Protective Order shall preclude any Party from asserting all potential objections to and otherwise resisting discovery requests, including objections based upon the private, confidential, proprietary, commercially sensitive and/or a trade secret nature of information sought. Nothing in this Protective Order shall preclude any Party from seeking and obtaining, upon a showing of good cause, additional protection with respect to the confidentiality of documents or other information, including, but not limited to, additional restrictions on disclosure to the Parties herein.

6. Basic Confidential Material and its contents may only be disclosed to the following persons and subject to the following conditions:

a. Counsel of record for the Parties to the Litigation, now or in the future, their respective associates, partners, law clerks, paralegals, legal assistants, secretaries, and other support staff who are actively engaged in assisting such attorneys in the prosecution or defense of the Litigation; provided, however, that the employees of such counsel to whom such access is permitted shall, prior to such access or disclosure, be advised of the provisions of this Protective Order and shall be instructed to comply with it;

b. The Parties, officers and current employees of the Parties whose knowledge of such information is necessary to enable the Parties to prepare for trial, to try this proceeding, ...


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