The opinion of the court was delivered by: Judge Hon. Ralph Zarefsky
[PROPOSED] ORDER GOVERNING THE TREATMENT OF CONFIDENTIAL INFORMATION
PROTECTIVE ORDER GOVERNING CONFIDENTIAL INFORMATION
Based on the parties' Stipulation Governing the Treatment of Confidential Information dated November 18, 2009 (the "Stipulation"), the Court hereby ORDERS as follows:
1. This Order Governing the Treatment of Confidential Information (the "Protective Order") shall govern the designation and handling of confidential documents, information and other discovery materials by any party or nonparty person or entity, regardless of whether such materials are produced in response to formal discovery procedures or informally by agreement of the parties, including any and all documents that have been produced in this litigation by any party or nonparty prior to this Protective Order.
2. Nothing in this Protective Order shall apply to documents, information, material, or any portion thereof obtained by any Party on a non-confidential basis from an unrelated person or entity ("Independently Obtained Documents"), provided that if an Independently Obtained Document duplicates, in whole or in part, documents produced to the Party and designated as Confidential Discovery Material, and the Independently Obtained Document was obtained directly or indirectly by the unrelated person or entity as a result of discovery from any Party or affiliated entity in litigation involving any Party or affiliated entity, such Independently Obtained Document, or the duplicative portion thereof, shall be treated by the Party as Confidential Discovery Material. Nothing in this paragraph shall be deemed to relieve any unrelated party or entity from complying with its obligations under any agreement or court order that is otherwise applicable to that person or entity.
3. The word "document" as used herein shall be construed to mean any document, tangible thing or writing as defined by Federal Rule of Civil Procedure 34(a) and Federal Rule of Evidence 1001(1).
4. As used in this Protective Order, "person" includes any individual, entity, natural person, or any business, legal or governmental entity or association. "Producing Person" refers to any person that produces Confidential Discovery Material. "Receiving Person" refers to any person that receives Confidential Discovery Material subject to this Protective Order
5. This Protective Order designates as "Confidential Discovery Material" documents that may be produced during discovery that are designated as such by a Producing Person because they contain highly sensitive non-public information.
6. All documents designated as Confidential Discovery Material shall be so designated in a letter accompanying their production to a Party or by stamping the first page of the document "CONFIDENTIAL." Documents may be designated as Confidential Discovery Material at any time, including that a Party may designate a document as CONFIDENTIAL after it was earlier produced without such a designation, and such production, in and of itself, shall not prejudice or otherwise constitute a waiver of, or estoppel as to, any claim of confidentiality to which the Producing Person would otherwise be entitled.
7. A designating party shall also have the right to redact non-relevant or privileged material. The redacted materials shall either be marked "Redacted" or shall have the redacted portions stricken and identified as redacted in an accompanying letter. Any such redaction may be challenged as set forth in this paragraph. In the event that a receiving party objects to any redaction, that party shall so notify the designating party in writing. Counsel shall then, within a reasonable time (not to exceed five days) after such notice is given, confer in person or by phone concerning the objection. If the objection cannot be resolved between counsel for the parties, the receiving party may apply to the Court for an order challenging the redaction. Neither party shall be obligated to challenge the propriety of any redaction, and failure to do so shall not constitute an admission that any information, document or other material is in fact non-relevant or privileged, nor preclude a subsequent challenge to the propriety of such redaction.
8. It is the intent of the Parties and the Court that materials will not be designated as Confidential Discovery Material for tactical reasons in this case and that nothing be so designated with a good faith belief that there is good cause why it should not be part of the public record in this case.
9. Confidential Discovery Material shall be subject to the following restrictions:
(a) Confidential Discovery Material shall be used solely for the purpose of preparing for, and conducting, the prosecution or defense of this Action, including any appeals thereof, and shall not be used by the Parties or any other person for any other purpose.
(b) Confidential Discovery Material shall not be given, shown, made available or communicated in any way to anyone except those persons specified in subparagraph (c) below to whom it is necessary that such Confidential Discovery Material be given or shown for the purposes permitted under subparagraph (a) above.
(c) Confidential Discovery Material may be disclosed, for the purposes set forth in subparagraph (a) above, only to a ...