The opinion of the court was delivered by: Hon. John F. Walter
ORDER REGARDING STIPULATED PROTECTIVE ORDER DISCOVERY MATTER Trial Date: December 14, 2010 Time: 8:30 a.m. Courtroom: 16
To expedite the flow of discovery material, facilitate the prompt resolution of disputes over confidentiality, protect adequately material entitled to be kept confidential, and ensure that protection is afforded only to material so entitled, it is, pursuant to the Court's authority under Rule 26(c) of the Federal Rules of Civil Procedure and with the consent of the parties, ORDERED:
1. Non-disclosure of Stamped Confidential Documents. Except with the prior written consent of the party or other person originally designating a document to be stamped as a confidential document, or as hereinafter provided under this order, no Stamped Confidential Document as the term is defined below, may be disclosed to any person.
2. Stamped Confidential Document. Any information, document, or thing produced by any party, third party, or non-party (the "Producing Entity") in connection with this litigation that is reasonably and in good faith believed by counsel for any Producing Entity to contain trade secrets*fn1 or other highly confidential or proprietary material including, but not limited to, information regarding: sales figures, distributors, manufacturers, purchasers, marketing, advertising, or other commercial information subject to protection under Rule 26(c)(7) of the Federal Rules of Civil Procedure may be designated as "CONFIDENTIAL." A "Stamped Confidential Document" shall mean any document which bears the legend (or which shall otherwise have the legend recorded upon it in a way that brings its attention to a reasonable examiner) "CONFIDENTIAL" to signify that it contains information believed to be subject to protection under Fed. R. Civ. P. 26(c)(7). The designation of Stamped Confidential Documents shall be made in good faith, upon a reasonable belief that such designation is appropriate. For purposes of this Order, the term "document" shall mean all written, recorded, or graphic material, whether produced or created by a party or another person, whether produced pursuant to Fed. R. Civ. P. 34, subpoena, by agreement or otherwise. Interrogatory answers, responses to requests for admission, deposition transcripts and exhibits, pleadings, motions, affidavits, and briefs that quote, summarize or contain material entitled to protection, may be accorded status as a Stamped Confidential Document, but, to the extent feasible, shall be prepared in such a manner that the confidential information is bound separately from that entitled to protection.
3. Permissible Disclosures. Notwithstanding paragraph 1 above, Stamped Confidential Documents may be disclosed to the parties in this action, counsel for the parties in this action; to the partners, associates, staff attorneys, paralegals, secretaries, paralegal assistants and employees of such attorneys; to translators; to persons with prior knowledge of the Stamped Confidential Documents or the confidential information contained therein and their agents; and to the Court officials involved in this litigation (including court reporters, persons operating video recording equipment at depositions, and any special master appointed by the Court). Such documents may also be disclosed:
(a) to any person designated by the parties as experts or to outside consultants or experts retained for the purpose of assisting counsel in the litigation and; and
(b) to persons noticed for depositions or designated as trial witnesses to the extent reasonably necessary in preparing to testify;
(c) provided, however, that each person in categories identified in subparagraphs (a) and (b) above to whom disclosure of Stamped Confidential Documents is to be made shall, in a written instrument (in the form of the Declaration attached as Exhibit A to this Order) executed prior to any disclosure, acknowledge that such person has read and understands that terms of this Order and agrees to comply with, and be bound by, this Order until modified by further Order of this Court or by agreement of the parties hereto. Counsel for each party shall maintain copies of executed recitals with respect to all persons described in subparagraphs (a) and (b) to whom counsel has disclosed or exhibited any Stamped Confidential Documents.
4. Motion to Disclose. In the event that a party desires to provide access to Stamped Confidential Documents hereunder to any person or category of persons not included in paragraph 3 hereof, that party shall move this Court for an order that such person or category of persons may be given access to such documents. The party asserting confidentiality shall have the burden of establishing the confidentiality of any documents challenged in a motion to disclose. In the event that the motion is granted, such person or category of persons may have access to such documents on whatever conditions or terms the Court shall require.
5. Declassification. The parties agree to work together in good faith to resolve disputes over whether particular documents constitute Stamped Confidential Documents. Should the parties fail to agree, a party (or aggrieved entity permitted by the Court to intervene for such purpose) may move this Court for an order that Stamped Confidential Documents are, in fact, not within the scope of protection afforded by Rule 26(c) of the Federal Rules of Civil Procedure; or that materials voluntarily disclosed by a party in these proceedings should not be subject to the protections of this Order. In addition to service on the opposing party, a copy of any such motion shall be served on any non-party who is the Producing Entity with respect to the materials at issue and such non-party Producing Entity shall have standing to oppose such motion before the Court. The party asserting confidentiality shall have the burden of establishing the confidentiality of any document that is the subject of a motion to declassify. Until declassified by the Court, all Stamped Confidential Documents shall remain subject to the terms of this Protective Order.
6. Timing for Designation. The Producing Entity may identify and mark Stamped Confidential Documents when answers to interrogatories, request for admissions or request for the production of documents are served; when affidavits, pleadings or memoranda are served; when copies of documents are provided; or at the time of the inspection of premises or things. The parties agree not to disclose any Stamped Confidential Documents pursuant to the terms of this Stipulation prior to and regardless of entry of an order thereon.
7. Inadvertent Failure to Effect Designation. Inadvertent failure by a Producing Entity to designate Stamped Confidential Documents as such prior to their disclosure or production will not prevent a subsequent designation by letter to the receiving party promptly sent after discovery of such inadvertent failure, provided that any disclosure of such documents made by the receiving party prior to any subsequent designation of material as Stamped Confidential Documents shall not be a violation of this Order.
8. Confidential Information in Depositions. (a) A deponent may during the deposition be shown, and examined about, Stamped Confidential Documents if the deponent already knows the confidential information contained therein or if the provisions of paragraph 3 are complied with. In instances where the provisions of paragraph 3 have not been complied with, the party seeking to show and examine a deponent about a document designated as "Confidential" shall have the burden of establishing said deponent's prior knowledge of confidential information contained in the documents before showing or examining deponent about said documents or the confidential information contained therein. A deponent who is not a party or a representative of a party shall be furnished with a copy of this Order before being examined about, or asked to produce, potentially confidential documents, and shall acknowledge compliance with this Order by executing the recital in the form attached as Exhibit A hereto.
(b) A party or nonparty deponent may designate testimony or exhibits as Stamped Confidential Documents, in accordance with the terms of paragraph 2 during a deposition by so stating on the record either at the commencement of the proceeding or at any time during the proceeding, in which event all persons who are not entitled to be privy to the confidential information contained in such documents shall be excluded from those portions of the proceeding at which such information is disclosed. In the event that testimony or exhibits are designated Stamped Confidential Documents during a proceeding, the Court Reporter shall transcribe separately and bind separately those portions of the testimony and/or exhibits designated as ...