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United Westlabs, Inc. v. Seacoast Laboratory Data Systems

March 17, 2010

UNITED WESTLABS, INC., PLAINTIFF,
v.
SEACOAST LABORATORY DATA SYSTEMS, INC. AND JOHN HERRING, DEFENDANT.



The opinion of the court was delivered by: Hon. Robert N. BLOCKUnited States Magistrate Judge

CONFIDENTIALITY STIPULATION AND [PROPOSED] PROTECTIVE ORDER AND RELATED COUNTER-CLAIM.

WHEREAS, during the discovery proceedings in this Action, defendant and counter-claimant Seacoast Laboratory Data Systems, Inc. ("Seacoast") and defendant John Herring and Plaintiff and counter-defendant, United WestLabs, Inc. ("UWL") and Counter-Defendants Harry Kanter, Robert Negosian, Robert Larson, NCX Group, Steve Drohan, Scott Margolis, Margolis Consulting Group, LLC, Michael Fitzpatrick, Bill Stevenson, Alan McLellan, Brendan Cosgrove and David Socash, collectively (the "Parties") may be requested to provide certain documents, things, responses to requests for admission, responses to interrogatories, and/or testimony that each of them contends may contain trade secrets or other confidential, commercial, financial and/or proprietary information.

WHEREAS, the parties are desirous of protecting such information from inappropriate disclosure;

IT IS HEREBY STIPULATED by and between the Parties, through their respective attorneys of record, that, subject to the approval of the Court, a protective order may be entered in the above-captioned proceeding that shall govern the handling of all information contained in documents, deposition testimony, depositions, exhibits, and any other written, recorded or graphic material, hereinafter referred to as "Discovery Material" produced by any party, or obtained by any party hereto from a non-party witness in connection with this Action, whether or not in response to a formal discovery request. The provisions of this Confidentiality Stipulation and Protective Order ("Protective Order") shall also apply to any non-party who provides Discovery Material and agrees in writing to be bound to the terms of this Protective Order. References to a "party" or "parties" herein shall also include such non-parties.

1. This Protective Order governs the designation, disclosure and use of confidential and highly confidential information in the above-identified action and any appeals or retrials through final judgment. This Protective Order shall govern until modified or superseded by a further order of this Court.

2. In this Protective Order, the terms "CONFIDENTIAL INFORMATION," "HIGHLY CONFIDENTIAL INFORMATION -- LNS," "HIGHLY CONFIDENTIAL INFORMATION -- SOURCE CODE" and "HIGHLY CONFIDENTIAL INFORMATION - ATTORNEYS' EYES ONLY" shall mean information so designated in compliance with this Protective Order. Information so designated may be (without limitation) all or part of a document or thing, testimony, interrogatory, answer, admission or other form of evidence or discovery.

3. Any person, including non-parties, producing documents, information, or other materials in this Action ("Producing Party") may designate as CONFIDENTIAL INFORMATION any information, thing, testimony, answers, documents, or other Discovery Material of a confidential, sensitive nature that (a) the producing party and its counsel (if the party is represented by counsel) reasonably and in good faith believe is in fact confidential; or (b) has only been disclosed pursuant to a protective order or non-disclosure agreement.

4. The Producing Party shall designate as HIGHLY CONFIDENTIAL INFORMATION -- LNS any computer source code or constituent components of Seacoast's SurroundLab ARTM proprietary software ("Source Code") that such party and its counsel (if the party is represented by counsel) allege was misappropriated by Counter-Defendants.

5. The Producing Party shall designate as HIGHLY CONFIDENTIAL INFORMATION - SOURCE CODE any Source Code, not alleged to have been misappropriated.

6. Any Producing Party may designate any confidential information as HIGHLY CONFIDENTIAL INFORMATION - ATTORNEYS' EYES ONLY any information that such party and its counsel (if the party is represented by counsel) believe in good faith is of a particularly sensitive nature of the type that could be readily exploited for commercial advantage by a competitor including, without limitation, (i) proprietary trade secrets or competitively sensitive data, (ii) customer lists, (iii) customer information, (iv) business, product or marketing plans, (v) cost data, (vi) pricing information, (vii) internal training materials, (vii) market studies or forecasts, (ix) nonpublic financial data, (x) information concerning development activities for products, (xi) non-public technical information for products, (xii) information protected by statute or privacy laws and (xiii) research or development or other activities or other non-public information concerning or relating to current or future products.

7. A Producing Party may designate Discovery Material as CONFIDENTIAL INFORMATION, HIGHLY CONFIDENTIAL INFORMATION -- LNS, HIGHLY CONFIDENTIAL INFORMATION -- SOURCE CODE or HIGHLY CONFIDENTIAL INFORMATION - ATTORNEYS' EYES ONLY at the time it produces the material. In the case of deposition testimony, the testimony or any portion thereof may be so designated at the deposition or within fifteen (15) days after preparation of the transcript of the deposition and transmission of the transcript to designating counsel by the deposition reporter.

8. CONFIDENTIAL INFORMATION, HIGHLY CONFIDENTIAL INFORMATION -- LNS, HIGHLY CONFIDENTIAL INFORMATION -- SOURCE CODE and HIGHLY CONFIDENTIAL INFORMATION -- ATTORNEYS' EYES ONLY shall be designated during discovery by the following procedure:

(a) When a document to be produced for inspection contains CONFIDENTIAL INFORMATION, HIGHLY CONFIDENTIAL INFORMATION -- LNS, HIGHLY CONFIDENTIAL INFORMATION -- SOURCE CODE or HIGHLY CONFIDENTIAL INFORMATION - ATTORNEYS' EYES ONLY, the Producing Party shall so notify the inspecting party by designating the document as described in paragraph 8. A document produced for inspection for which such notice has been given shall be inspected only by persons authorized to receive such information as provided herein.

(b) The Producing Party shall designate documents as containing CONFIDENTIAL INFORMATION, HIGHLY CONFIDENTIAL INFORMATION -- LNS, HIGHLY CONFIDENTIAL INFORMATION -- SOURCE CODE or HIGHLY CONFIDENTIAL INFORMATION - ATTORNEYS' EYES ONLY by marking, according to the provisions of paragraph 8, each page of the copy that is or contains such information. If any page of a multi-page document is designated, the Producing Party shall also indicate on the first page of the document that it contains CONFIDENTIAL INFORMATION, HIGHLY CONFIDENTIAL INFORMATION -- LNS, HIGHLY CONFIDENTIAL INFORMATION -- SOURCE CODE or HIGHLY CONFIDENTIAL INFORMATION - ATTORNEYS' EYES ONLY.

(c) In the case of information produced in electronic media, such as CDs or DVDs, the designation shall be made by placing the Legend on the exterior of the CD, DVD or other media. When information is printed out from such media, the Receiving Party shall ensure that each page of all copies of the printed-out materials contains the appropriate designation.

(d) When deposition testimony is or contains CONFIDENTIAL INFORMATION, HIGHLY CONFIDENTIAL INFORMATION -- SOURCE CODE or HIGHLY CONFIDENTIAL INFORMATION - ATTORNEYS' EYES ONLY, any attorney of record present may so designate that by notifying others present on the record of the deposition. The deposition reporter shall then so mark each page of the transcript that reports designated testimony. Alternatively, any party may, until and including fifteen (15) days after transmission of a copy of said deposition transcript by the deposition reporter, designate by page and line or exhibit description those portions of the transcript or exhibits which contain CONFIDENTIAL INFORMATION, HIGHLY CONFIDENTIAL INFORMATION -- LNS, HIGHLY CONFIDENTIAL INFORMATION -- SOURCE CODE or HIGHLY CONFIDENTIAL INFORMATION - ATTORNEYS' EYES ONLY. All transcripts and exhibits from depositions taken in this Action shall be deemed to contain HIGHLY CONFIDENTIAL INFORMATION - ATTORNEYS' EYES ONLY until and including fifteen (15) days transmission of said deposition transcript to all counsel of record for the parties by the deposition reporter.

(e) When responses to interrogatories or requests to admit contain CONFIDENTIAL INFORMATION, HIGHLY CONFIDENTIAL INFORMATION -- LNS, HIGHLY CONFIDENTIAL INFORMATION -- SOURCE CODE or HIGHLY CONFIDENTIAL INFORMATION - ATTORNEYS' EYES ONLY, the responding party shall so mark the cover page and each succeeding page of its response that contain such information pursuant to paragraph 8.

9. CONFIDENTIAL INFORMATION, HIGHLY CONFIDENTIAL INFORMATION -- LNS, HIGHLY CONFIDENTIAL INFORMATION -- SOURCE CODE or HIGHLY CONFIDENTIAL INFORMATION - ATTORNEYS' EYES ONLY shall be marked pursuant to paragraph 7 of this Protective Order by the placement of an appropriate stamp, sticker or other indicia of substantially the following form:

CONFIDENTIAL INFORMATION;

HIGHLY CONFIDENTIAL INFORMATION -- LNS;

HIGHLY CONFIDENTIAL INFORMATION -- SOURCE CODE; or HIGHLY CONFIDENTIAL INFORMATION -- ATTORNEYS' EYES ONLY.

10. (a) Any CONFIDENTIAL INFORMATION, HIGHLY CONFIDENTIAL INFORMATION -- LNS, HIGHLY CONFIDENTIAL INFORMATION -- SOURCE CODE or HIGHLY CONFIDENTIAL INFORMATION

- ATTORNEYS' EYES ONLY, or any document incorporating such information, that is filed or lodged with the Court shall be filed or lodged with the Court in accordance with the procedures to file or lodge documents under seal, as set forth in the Local Rules of this Court.

(b) A copy of all material filed or lodged with the Court under seal, redacted to remove all confidential information, shall be placed in the public court file. Any interested member of the public (i.e., non-parties or employees or affiliates of a party) may challenge the filing under seal and, in the event of such a challenge, the party asserting confidentiality shall have the burden of persuasion.

(c) For any papers to be filed with the Court pursuant to Paragraph 9(a), the Receiving Party shall file an application to file the papers or the portion thereof containing the CONFIDENTIAL INFORMATION, HIGHLY CONFIDENTAIL INFORMATION -- LNS, HIGHLY CONFIDENTIAL -- SOURCE CODE or HIGHLY CONFIDENTIAL INFORMATION -- ATTORNEYS' EYES ONLY (if such portion is segregable) under seal; and that application shall be directed to the judge to whom the papers are directed. All parties shall cooperate in good faith to seek an expedited ruling on the application.

11. CONFIDENTIAL INFORMATION may be disclosed only to persons in the following categories who have the actual need to review CONFIDENTIAL INFORMATION:

(a) outside attorneys and their working staff handling this matter for a law firm with an appearance for a party in this Action;

(b) the parties, employees or consultants of a party to this Action, provided that, before any CONFIDENTIAL INFORMATION is disclosed to any such individual, counsel desiring to disclose CONFIDENTIAL INFORMATION to such individual shall first obtain from such individual a signed Undertaking in the form of Exhibit A hereto. Counsel shall maintain the original signed Undertakings in accordance with paragraph 23, and deliver them to the Court for in camera inspection as may be directed by the Court;

(c) outside experts or consultants (i.e., not a party or its current employees or affiliates) and their support staff, retained by counsel of record in this Action, but only to the extent reasonably deemed necessary by such counsel of record, provided that, before any CONFIDENTIAL INFORMATION is disclosed to any such outside expert, advisor or consultant or their support staff, counsel desiring to disclose CONFIDENTIAL INFORMATION to such outside expert, advisor or consultant or their working staff shall first obtain from such individual a signed Undertaking in the form of Exhibit A hereto. Counsel shall maintain the original signed Undertakings in accordance with paragraph 23, deliver them to the Court for in camera inspection as may be directed by the Court, and deliver them to counsel for Producing Party upon entry of final judgment or dismissal in this Action;

(d) the Court and court reporters/videographers retained to record and/or transcribe testimony in this Action;

(e) any representative of the party that produced the CONFIDENTIAL INFORMATION to the extent the representative has ...


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