The opinion of the court was delivered by: Hon. John A. Mendez
STIPULATED PROTECTIVE ORDER GOVERNING THE USE OF CONFIDENTIALOF CONFIDENTIAL
This Protective Order shall govern all documents and other information exchanged among the parties or produced by non-parties in connection with this litigation, including information received or exchanged as part of any discovery conducted by the parties.
The term "parties" as used herein shall mean all persons and entities that have appeared or may hereafter appear in these proceedings. The term "counsel" as used herein shall mean members and associates of law firms and individual attorneys who appear of record and of counsel for the parties to this proceeding.
1. Any party may designate as "confidential" any information contained in the party's answers to interrogatories, answers to requests for admission, answers in oral or written depositions of its officers, directors, employees or agents, information contained in documents produced by a party or its agents, and information contained in any other discovery response provided by a party or its agents, or by a non-party pursuant to subpoena, in this litigation. By designating information as confidential the party so designating represents that it has done so in good faith and that such information is deserving of protection as confidential.
2. The designation of information as "confidential" may be made by placing or affixing on each page of a document containing the information in question (without interfering with the legibility thereof) the following or a similar notice: "CONFIDENTIAL -- SUBJECT TO PROTECTIVE ORDER," or in the manner described in paragraph 6 (collectively referred to as "confidential" information). Any page containing such notice, and all of the information contained on such page, shall be considered confidential unless the party producing such page shall clearly indicate thereon that only a portion of that page is to be treated as confidential.
3. The designation of information as confidential must be made by a party or non-party contemporaneously with provision of such information in discovery or as part of settlement discussions, provided, however, that with respect to the production of documents, the designation of information as confidential may be made after inspection of such documents by counsel for the inspecting parties, but no later than the date upon which requested individual copies of such documents are first provided to such counsel. With respect to information provided by a non-party pursuant to subpoena that has not been designated as confidential by such non-party, the designation by a party of such information as confidential may be made by a party within twenty (20) business days of the date such information is first provided to counsel.
4. Objections to the designation of information as confidential shall be made within twenty (20) business days from the date such designation is received by counsel. In the event of objections to the designation of information as confidential by a party receiving the information, the burden shall be on the party producing the information to move within twenty (20) business days of receiving such objections for an order of the court determining that the information is confidential and/or proprietary and entitled to protection under Federal Rule 26 (c). Provided that the producing party so moves, the subject information that has been produced and designated confidential shall be treated as confidential within the terms of this Protective Order until otherwise ordered by the Court. If the producing party does not so move within twenty (20) business days , the information shall no longer be deemed confidential pursuant to this Protective Order.
5. Counsel for a party or parties receiving information designated as confidential shall not disclose, make available, or communicate such confidential information to any person; provided, however, that, subject to the restriction contained in paragraph 6 below:
(a) Counsel may disclose such information to paralegal, secretarial, clerical and accounting personnel, who are regular employees of said counsel, to the extent that such disclosure is necessary for the preparation for and any settlement discussions, hearings, or the trial and the appeal of the matters referred to in paragraph 12. All persons to whom counsel discloses such information pursuant to this subparagraph shall be bound by the terms of this Protective Order.
(b) Counsel may disclose such information to experts, consultants, officers, directors, officials, employees, and other attorneys of the respective parties to this matter, including the parties themselves. All persons to whom counsel discloses such information pursuant to this subparagraph shall agree to be bound by the terms of this Protective Order, and, prior to such disclosure, all such persons, other than counsel or their employees, shall execute a confidentiality agreement in the form attached hereto as Exhibit A.
6. In addition to the notation required in paragraph 2 above, a party may limit the disclosure of confidential information to counsel's eyes only by placing the following or similar notice on each page of a document containing such information: "COUNSEL'S EYES ONLY." Such a designation shall mean that the parties themselves may not have access to information so designated, except that a party's in-house counsel may have access to information so designated, as well as the party's counsel and any retained consultants and experts. Information shall not be designated "COUNSEL'S EYES ONLY" unless the disclosure of the information to the other party's officers, directors or employees would cause the receiving party to have a competitive advantage over the disclosing party in competing for new business. Financial and business information more than three years old shall not be designated COUNSEL'S EYES ONLY unless the disclosing party can establish by clear and convincing evidence that disclosure of the information would cause the receiving party to have a present competitive advantage.
7. Confidential information may be used in connection with the actual or anticipated deposition, hearing or trial testimony of any person, whether or not the deponent is an officer or an employee of a party, provided that:
(a) The deponent and counsel for the deponent, if not otherwise bound by this Protective Order, shall be informed prior to the disclosure of confidential information that a confidentiality agreement in the form attached hereto as Exhibit A must be signed. In the event of refusal of the witness or his counsel to execute a confidentiality agreement, the party or parties attempting to use ...