The opinion of the court was delivered by: James V. Selna United States District Court Judge
Assigned for All Purposes to: Hon. James V. Selna
STIPULATED PROTECTIVE ORDER
This Confidentiality Agreement and Stipulated Protective Order is hereby entered into by and between Claimant Toyo Tire Holdings of Americas Inc., as successor to Toyo Tire International, Inc. ("Toyo-US"), and Defendants Yokohama Corporation of America ("Yokohama-US"), Continental Tire North America, Inc., as successor to General Tire, Inc. ("Continental-US"), and GTY Tire Co. ("GTY") (collectively, Yokohama-US, Continental-US, and GTY shall be referred to herein as "Defendants"), through their respective counsel of record.
The action Toyo Tire Holdings of Americas, Inc. v. Continental Tire North America, Inc. ("the Litigation") may require the disclosure of information, either documentary or testimonial or both, that is regarded by the producing party as confidential and/or private information that may incorporate or contain proprietary data, trade secrets, other valuable or commercially sensitive information, and/or relate to confidential and private information concerning parties, witnesses, and persons that may not be a party to the Litigation. To protect the documents and information produced during the course of this Litigation, Claimant Toyo-US and Defendants (collectively, the "Parties") hereby agree to the following Order.
It is hereby agreed and ordered that each Party to this Litigation, as well as anyone else who subsequently may subscribe to this Protective Order (by execution of the CONFIDENTIALITY UNDERTAKING attached hereto as Appendix A ("Confidentiality Undertaking"), (collectively, the Parties and everyone who executes a Confidentiality Undertaking shall be deemed "Bound Parties"), shall be bound by this Protective Order as follows:
This Protective Order shall govern all materials generated in this Litigation, including but not limited to the following: all submissions to the Tribunal, all correspondence between or among the parties, all documents, affidavits, motions, all Tribunal rulings (including but not limited to interim and final awards), data and information produced in discovery, answers to interrogatories, depositions and deposition exhibits, and responses to requests for admission (collectively, "Litigation Information"). The fact that a particular type of discovery is mentioned does not indicate that such discovery is agreed to among the parties.
2. Litigation Information designated for protection under this Protective Order shall be designated as (a) CONFIDENTIAL or (b) ATTORNEYS' EYES ONLY by the entity or individual producing it ("Producing Party") prior to disclosing it to the entity or individual receiving it ("Receiving Party"), and any documents or information derived therefrom shall be used solely for purposes of this Litigation and may not be used for any other purpose whatsoever, including but not limited to any business or commercial purpose, for dissemination to the public, government or media, or in any other litigation or investigatory proceeding. Litigation Information designated as CONFIDENTIAL or ATTORNEYS' EYES ONLY constitutes "Protected Information" under this Order. For the purposes of this Order, the "Litigation" includes any proceeding to confirm or enforce an award.
3. The "CONFIDENTIAL" designation may be applied to Litigation Information that the Producing Party reasonably and in good faith determines to constitute commercially sensitive mater which if disclosed would damage the Producing Party or unfairly advantage any third party, including such information generated in connection with this Litigation, including, but not limited to the following: all submissions to the tribunal and communications to the other parties, motions, deposition and hearing transcripts, documents created for the Litigation or produced in this proceeding either by a party to the Litigation or a third party, a final award, all reasoned decisions, any interim decisions or awards, all correspondence between or among the parties, oral discussions, or other information exchanged in connection with this Litigation. As used herein, the term "documents" shall be broadly construed to include information that is recorded in any form, including, but not limited to, hard copy, electronically stored information, and audio and video recordings. Unless otherwise specified, the "CONFIDENTIAL" or "CONFIDENTIAL INFORMATION" designation shall apply to all materials generated in connection with this Litigation regardless of whether a "CONFIDENTIAL" or "CONFIDENTIAL INFORMATION" legend is affixed to any particular documents and/or information.
4. The "ATTORNEYS' EYES ONLY" designation may only be used for Litigation Information that the Producing Party reasonably and in good faith determines to constitute confidential and highly sensitive technical, technical development, financial, or business information the disclosure of which could result in irreparable financial injury or the reduction in the Producing Party's competitive advantage in the marketplace, including but not limited to trade secrets, information relating to unpublished patent applications, non-public financial or pricing information, information or documents that relate to products under development, product supplier and sourcing information, and contracts or business arrangements with entities that are not parties to this Litigation.
DESIGNATING AND HANDLING CONFIDENTIAL MATERIAL
5. To designate and categorize written Litigation Information as "CONFIDENTIAL", no additional marking is required -- all Litigation Information is automatically deemed "CONFIDENTIAL" with or without such designation.
6. Confidential Information designated pursuant to Paragraph 5 may be disclosed only to the following persons, each of whom shall be deemed a "Receiving Party," except upon the prior written consent of the Producing Party:
(a) Attorneys from any law firm that is counsel of record for any Bound Party in this Litigation, and in-house counsel for any Bound Party.
(c) Witnesses who may or will testify at deposition, trial or otherwise in this Litigation and who have executed a Confidentiality Undertaking prior to disclosure;
(d) Independent consultants and experts, to the extent disclosure is necessary for their services in connection with this Litigation, provided that such consultants and experts have executed a Confidentiality Undertaking prior to disclosure;
(e) Outside contractors hired by any of the parties designated in 5(a), (b), (c), and (d) to copy, index, sort, or otherwise manage the storage and retrieval of Litigation Information, provided that such outside contractors have agreed in writing to keep confidential any Confidential Information to which they have access;
(f) Secretarial, clerical and legal assistants working under the supervision of the parties designated in Paragraphs 5(a), (b), (c), and (d) assigned to and necessary to assist in the conduct of this Litigation;
(g) Any other individual that the document clearly identifies as an author, addressee, or copy recipient;
(h) Court reporters and videographers who record and/or transcribe deposition or other testimony in this Litigation;
(i) The ICC Secretariat, the Tribunal and staff assisting members of the Tribunal; and
(j) Any other entity or individual designated by a further order of the Tribunal to receive Confidential Information.
DESIGNATING AND HANDLING ATTORNEYS' EYES ONLY MATERIAL:
7. To designate and categorize written Litigation Information as Attorneys' Eyes Only Information, the Producing Party shall stamp or otherwise mark "ATTORNEYS' EYES ONLY" ...