The opinion of the court was delivered by: The Hon. Jack Zouhary
STIPULATED PROTECTIVE ORDER
Pursuant to Federal Rule of Civil Procedure 26(c), to protect the trade secrets and confidential business and other information of the parties and related third parties, the parties to this action, by and through their respective counsel, hereby stipulate to the following protective order for the protection of confidential information, documents and other things produced or given as part of the disclosure, discovery or litigation process in this action:
IT IS HEREBY ORDERED THAT:
1. Application Of This Protective Order. All information, testimony, things or documents filed with the Court or produced or given (either by a party or by a non-party) as part of discovery in this action shall be governed by this Protective Order, including without limitation all transcripts, exhibits, answers to interrogatories, copies thereof, other documents and things, and all information otherwise obtained from a party pursuant to discovery and/or trial in this litigation that any party designates as "CONFIDENTIAL" or "CONFIDENTIAL -- ATTORNEYS' EYES ONLY" (hereafter, collectively referred to as "Confidential Material").
2. Confidential Designation. A party or non-party (the "Designating Party") may designate as "CONFIDENTIAL" the whole or portion of any document or thing that the Designating Party reasonably believes in good faith in accordance with Fed. R. Civ. P. 26(c) contains confidential information, including but not limited to research, development, financial, technical, marketing, product planning, personal and/or commercial information not readily available to the public.
3. Confidential -- Attorneys' Eyes Only Designation. A Designating Party may designate as "CONFIDENTIAL -- ATTORNEYS' EYES ONLY" the whole or that portion of any confidential information that the Designating Party reasonably believes in good faith in accordance with Fed. R. Civ. P. 26(c) contains highly sensitive information that, if disclosed to a competitor, would or may cause competitive harm, including but not limited to any (a) trade secrets, (b) confidential or competitively sensitive research, development, financial or commercial information, or (c) highly sensitive personal information (such as names, credit information, addresses and/or social security numbers). In addition, for confidential information which American Honda Motor Co., Inc. ("American Honda") in good faith reasonably believes contains especially sensitive information, the disclosure of which to a competitor would likely result in harm to American Honda, it shall further designate such confidential information as "COMPETITIVELY SENSITIVE." If Plaintiffs' Counsel believe that the designation of a document or documents is overly broad, Plaintiffs may seek relief from this order pursuant to the provisions of Paragraphs 6 and 21.
4. Designating And Marking Confidential Material. Confidential Matter to be designated "CONFIDENTIAL" or "CONFIDENTIAL -- ATTORNEYS' EYES ONLY" pursuant to this Protective Order shall be designated and marked as follows:
A. Documents: Documents may be designated as "CONFIDENTIAL" by placing on each page the following legend (or equivalent thereof) on any such document: "CONFIDENTIAL." Documents may be designated as "CONFIDENTIAL -- ATTORNEYS' EYES ONLY" by placing on each page the following legend (or equivalent thereof) on any such document: "CONFIDENTIAL -- ATTORNEYS' EYES ONLY."
B. Magnetic Or Optical Media Documents: The parties agree that for materials on magnetic or optical media (such as floppy diskette, CD or DVD), the medium container and the medium itself shall both be marked or labeled with the appropriate confidentiality notice as described in Paragraph 4(A) above, and the contents thereof shall be treated in accordance with this Order. Notwithstanding the foregoing, documents which are contained on magnetic or optical media will be printed out by the producing party and stamped with the appropriate confidentiality notice and produced to the other party in paper format, unless such production shall result in the aggregate production exceeding the equivalent of ten (10) bankers' boxes of documents, in which case the parties shall meet and confer to determine whether to share the cost of creating an electronic production database whereby confidentiality designations can be automatically applied.
C. Physical Exhibits: The confidential status of a physical exhibit shall be indicated by placing a label on said physical exhibit with the appropriate confidentiality notice as described in Paragraph 4(A) above.
D. Written Discovery: In the case of information incorporated in answers to interrogatories or responses to requests for admission, the appropriate confidentiality designation as described in Paragraph 4(A) above shall be placed on each answer or response that contains Confidential Material.
E. Deposition Proceedings: Whenever Confidential Material is to be disclosed in a deposition, prior to making such disclosure, the party proposing to do so shall inform the witness on the record that the use of such information is subject to the terms of this Protective Order. If any person other than the witness is present at the deposition and does not come within the categories of persons defined in Paragraphs 9 or 10 of this Protective Order, that person shall not be permitted to be present while Confidential Material is used during the deposition. Notwithstanding the foregoing, Attorneys shall not be precluded from examining a witness concerning any material designated as "CONFIDENTIAL" or "CONFIDENTIAL -- ATTORNEYS' EYES ONLY" if the record reveals that the deponent or witness authored that material or previously received that material in the normal course of business.
F. Designation Of Transcripts: The attorney for any party or third party shall designate portions of a deposition transcript as "CONFIDENTIAL" or "CONFIDENTIAL -- ATTORNEYS' EYES ONLY" by making such designation on the record during the deposition. Unless the parties agree to treat the entire deposition containing confidential information as confidential, those portions designated during the deposition as "CONFIDENTIAL" or "CONFIDENTIAL -- ATTORNEYS' EYES ONLY" shall be separated and treated as provided in Paragraphs 9 or 10 of this Protective Order (as appropriate) and shall be fully subject to the relevant provisions of this Protective Order. Transcripts that are not so designated on the record shall nevertheless be treated as "CONFIDENTIAL -- ATTORNEYS' EYES ONLY" until thirty (30) days after receipt of the deposition transcript by counsel for the witness, during which period counsel for the witness may designate all or portions of the deposition transcript (including exhibits) as "CONFIDENTIAL" or "CONFIDENTIAL -- ATTORNEYS' EYES ONLY" (as appropriate). All portions of any deposition transcript not designated as "CONFIDENTIAL" or "CONFIDENTIAL -- ATTORNEYS' EYES ONLY" shall be free from the provisions of this Protective Order.
5. Inadvertent Misdesignation. A Designating Party that inadvertently fails to mark an item as "CONFIDENTIAL" or "CONFIDENTIAL -- ATTORNEYS' EYES ONLY" (or marks an item with an incorrect designation of confidentiality) at the time of production shall not be deemed to have waived in whole or in part any claim of confidentiality, either as to the specific information disclosed or as to any other information on the same or related subject matter. Any such misdesignated material shall be correctly designated as "CONFIDENTIAL" or "CONFIDENTIAL -- ATTORNEYS' EYES ONLY" as soon as reasonably practical after the producing party becomes aware of the incorrect designation. Such correction and notice thereof shall be made in writing, accompanied by substitute copies of each item appropriately marked. Within five (5) days of receipt of the substitute copies, the receiving party shall return or destroy the previously unmarked (or incorrectly marked) items and all copies thereof.
6. Challenging Designation Of Confidential Materials. Any party may, in good faith, challenge the designation of Confidential Material in writing. Following receipt of such a written challenge, the parties shall have five (5) business days to attempt to negotiate a resolution of the challenge after which time the party objecting to the designation may file a motion with this Court seeking a determination that the designation is inappropriate. The Designating Party shall bear the burden of establishing that the challenged designation was appropriate under the terms of this Agreement and that the requirements for the issuance of a protective order under Fed. R. Civ. P. 26(c) have been satisfied. Notwithstanding the existence of any challenge to any designation made hereunder, the parties shall treat all material designated as "CONFIDENTIAL" or "CONFIDENTIAL -- ATTORNEYS' EYES ONLY" as protected under the terms of this Protective Order until such time as the Court issues an order to the contrary. LIMITATIONS ON USE AND DISCLOSURE OF CONFIDENTIAL MATERIAL
7. Use Of Confidential Material. All material designated as "CONFIDENTIAL" or "CONFIDENTIAL -- ATTORNEYS' EYES ONLY" shall be used only for the purposes of this lawsuit and not for any other litigation, business or other purposes whatsoever. Unauthorized use of Confidential Material includes, but is not limited to, disclosure of such materials to the public or inclusion of such materials in pre- or post-termination publicity regarding the litigation or disclosure of such materials to any person who is not authorized by Paragraphs 9 or 10 to have access to such materials.
8. Use of Confidential Materials During Court Proceedings. In the event that any Confidential Material is used in any pre-trial proceeding in this litigation (including but not limited to conferences, oral arguments or hearings), the Confidential Material shall not lose its status as Confidential Material through such use. No fewer than three (3) days prior to such pre-trial proceeding, the party intending to use such Confidential Material shall notify the Designating Party of its intention to use such material. For the purposes of hearings on motions, designation or citation in the briefs of Confidential Material shall be considered to be sufficient notice to a party with respect to information and documents referenced therein. Upon such notification, the parties shall meet and confer and the party seeking to use the Confidential Material shall take all steps reasonably required to protect the confidentiality of the Confidential Material during such use, subject to the approval of the Court. The terms of this Protective Order do not preclude, limit, restrict or otherwise apply to the use of Confidential Material at trial. The parties agree to meet and confer in good faith prior to trial to establish procedures for the use of Confidential Material at trial (if any).
9. Disclosure Of "Confidential -- Attorneys' Eyes Only" Materials. Confidential Material designated as "CONFIDENTIAL -- ATTORNEYS' EYES ONLY" shall not be given, shown, made available or communicated in any way to anyone other than:
A. Counsel. In-house counsel and outside counsel of record for the respective parties to this litigation, including necessary secretarial, clerical and litigation support or ...