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Value Home Auctions, Inc. v. X-Wire Technologies

July 1, 2010

VALUE HOME AUCTIONS, INC., PLAINTIFF,
v.
X-WIRE TECHNOLOGIES DEFENDANT. AND RELATED COUNTERCLAIMS.



The opinion of the court was delivered by: Hon. Robert N. Block U.S. Magistrate Judge

STIPULATION AND [PROPOSED] PROTECTIVE ORDER

Pursuant to Fed. R. Civ. P. 26(c) and the Local Rules of this Court, and in order to facilitate discovery and, particularly, to facilitate the exchange during discovery of documents, information or other materials which may contain or relate to confidential, proprietary or trade secret information of another party or of a third party, Plaintiff and Counterclaim Defendant Value Home Auctions, Inc. ("VHA") and Defendant and Counterclaim Plaintiff X-Wire Technologies, Inc. ("X-Wire") and Defendants Joy Valentine ("Valentine") and Robert Amico ("Amico," and collectively with VHA, X-Wire and Valentine, the "Parties") have agreed to this Protective Order on the terms set forth below.

IT IS HEREBY STIPULATED that:

1. This Order shall apply to all information produced during discovery or submitted in proceedings in this action, including information produced as an initial disclosure or for purposes of mediation or arbitration, that shall be designated by the party or person producing it (the "Producing Party") as "Confidential" or "Confidential-Attorneys' Eyes Only" (collectively, "Confidential Information"). This Order shall not apply to information that, before disclosure, is properly in the possession or knowledge of the party to whom such disclosure is made (the "Receiving Party"), or is public knowledge, nor shall this Order apply to evidence presented at court hearings or proceedings. The restrictions contained in this Order shall not apply to information that is, or after disclosure becomes, public knowledge other than by an act or omission of the party to whom such disclosure is made, or that is legitimately acquired from a source not subject to this Order.

2. Good cause exists for this Court to enter the Order. In the course of pre-trial discovery disclosure has been sought of technical, marketing, personnel, and financial information that contains highly confidential, trade secret, or proprietary information of the parties, which the parties have taken reasonable steps to maintain as confidential. For example, through document requests and interrogatories, the parties have already sought discovery from one another in this case that requires the parties to disclose information relating to highly confidential technical product and software specifications and data; confidential business relationships with third parties; and detailed product cost, sales, and profitability information. Such information is maintained confidentially by each of the parties, and the parties believe that its disclosure beyond the limits set forth herein would substantially injure the disclosing party and provide a significant competitive advantage for competitors of the parties (including the receiving party), if such competitors had access to the Confidential Information identified above.

3. If an exhibit, pleading, interrogatory answer, or admission (collectively, "discovery response"), document or thing (collectively, "document or thing"), or a deposition transcript, other transcript of testimony, or declaration or affidavit (collectively, "testimony") contains information considered confidential by the disclosing party, such exhibit, pleading, discovery response, document or thing, or testimony may be designated "Confidential" or "Confidential-Attorneys' Eyes Only" by the disclosing party. This Order shall not apply to evidence presented at court hearings or proceedings.

4. In connection with an exhibit, pleading, discovery response, document or thing, testimony or other court submission, the legend "Confidential" or "Confidential-Attorneys' Eyes Only" (in such a manner as will not interfere with the legibility thereof) shall be affixed before the production or service upon a party.

5. A document may be designated "Confidential" only when it contains, reflects, or otherwise discloses a trade secret or other research, development, commercial, marketing, technical, business, financial, personnel, customer or other information that the disclosing party has made reasonable efforts to maintain as confidential and protect against disclosure to improper third parties. A document may be designated "Confidential-Attorneys' Eyes Only" only when it contains any of the following highly sensitive information: financial information; cost information; pricing information; sales information; customer, license, supplier, and vendor information; software and firmware for a party's products; technical and development information about a party's products, including but not limited to a product's dimensions or manufacturing tolerances; comparative product test results; business plans; marketing strategies; new product plans and competitive strategies; or any other information that would put the producing party at a competitive disadvantage if the information became known to employees of the receiving party or if the information became known to third parties beyond the restrictions set forth herein.

6. All Confidential Information (i.e., "Confidential" and/or "Confidential-Attorneys' Eyes Only" information) that has been obtained from a party during the course of this proceeding shall be used only for the purpose of this litigation (including, without limitation, appeals and proceedings to enforce subpoenas issued in connection with this litigation) and not for any other business, proceeding, litigation, or other purpose. Further, such information may not be disclosed to anyone except as provided in this Order. Counsel for a party may give advice and opinions to their client based on evaluation of information designated as Confidential Information produced by the other party. For information designated "Confidential-Attorneys' Eyes Only," such rendering of advice and opinions shall not reveal the content of such information except by prior written agreement with opposing counsel.

7. All documents, or any portion thereof, produced for inspection only (i.e., copies have not yet been provided to the receiving party) shall be deemed "Confidential-Attorneys' Eyes Only." If a copy of any such document is requested after inspection, the document shall be deemed "Confidential" or "Confidential-Attorneys' Eyes Only" only if labeled or marked in conformity with Paragraph 3, with access and dissemination limited as set forth in Paragraphs 12-15.

8. Information disclosed at a deposition may be designated as "Confidential" or "Confidential-Attorneys' Eyes Only" at the time of the deposition, or within fourteen (14) days following receipt of the transcript, and shall be subject to the provisions of this Order. Information disclosed during a deposition may be designated as "Confidential" or "Confidential-Attorneys' Eyes Only" by notifying the other party, in writing, within fourteen (14) days after receipt of the transcript, of the specific pages of the transcript that should also be so designated. Unless otherwise agreed on the record of the deposition, all transcripts shall be treated as "Confidential-Attorneys' Eyes Only" for a period of fourteen (14) days after their receipt, and the transcript shall not be disclosed by a non-designating party to persons other than those persons named or approved according to Paragraphs 13-15 to review documents or materials designated "Confidential-Attorneys' Eyes Only" on behalf of that nondesignating party.

9. In accordance with Local Rule 79-5.1, if any papers to be filed with the Court contain information and/or documents that have been designated as "Confidential" or "Confidential -- Attorneys' Eyes Only," the proposed filing shall be accompanied by an application to file the papers or the portion thereof containing the designated information or documents (if such portion is segregable) under seal; and the application shall be directed to the judge to whom the papers are directed. For motions, the parties shall publicly file a redacted version of the motion and supporting papers.

10. As used in this Protective Order, "Trial Counsel" refers exclusively to attorneys of record in this action and their paralegals, agents, and support staff, together with John Madden, Esq., general counsel to VHA. "Trial Counsel" may refer to additional attorneys that enter their appearance in this matter for any existing or additional party, or as may be ordered by the Court, or subsequently may be agreed upon by the parties, such agreement not to be unreasonably withheld.

11. Material designated as "Confidential" that has been obtained from a party during the course of this proceeding may be disclosed or made available only to the Court, to Trial Counsel for either party, and to the persons designated below provided that such persons who are included in categories (a), (b), (e), and (i) below agree in writing to be bound by the provisions of this order and to keep all materials so disclosed strictly confidential and not to disclose any such material to anyone not otherwise specifically authorized to review the material as provided immediately below, and subject to Paragraphs 13, 14 and 15 hereof:

(a) a party, or an officer, director, or designated employee of a party, deemed necessary by Trial Counsel to aid in the prosecution, defense, or settlement of this action;

(b) independent experts or consultants (together with their clerical staff) retained by such Trial Counsel to assist in the prosecution, defense, or settlement of this action;

(c) court reporter(s) employed in this action; (d) agents of Trial Counsel needed to perform various services such as, for example, copying, drafting of exhibits, and support and management services, including vendors retained by the parties, or by counsel for parties, for the purpose of encoding, loading into a computer and storing and maintaining for information control and retrieval purposes, transcripts of depositions, hearings, trials, pleadings, exhibits marked by a party, or attorneys' work product, all of which may contain material designated Confidential;

(e) witnesses in any deposition or other proceeding of this action; (f) Judges, Magistrates, law clerks and other clerical personnel of the Court before which this action is pending;

(g) members of the jury and alternates;

(h) courtroom spectators at hearings and trial as may be deemed appropriate by the Court; and

(i) any other persons as to whom the parties in writing agree.

12. Material designated as "Confidential-Attorneys' Eyes Only" that has been obtained from the producing party or parties during the course of this proceeding may be disclosed or made available only to the Court, to Trial Counsel for either party, and to the persons designated below provided that such persons who are included in categories (a), (b), (e), and (i) below agree in writing to be bound by the provisions of this order and to keep all materials so disclosed highly confidential and not to disclose any such material to anyone not otherwise specifically authorized to review the material as provided immediately below and subject to Paragraphs 13, 14 and 15 hereof:

(a) independent experts or consultants (together with their clerical staff) retained by such Trial Counsel to assist in the prosecution, ...


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