The opinion of the court was delivered by: Honorable James V. Selna
Complaint Filed: March 9, 2010
ORDER RE STIPULATED PROTECTIVE ORDER
The parties to the above-captioned lawsuit possess information related to the subject matter of this action that is confidential, and they recognize that in the course of discovery proceedings, it may be necessary to disclose such information. Much of this information is, in turn, protected as trade secrets and confidential business and other information, or is otherwise protected from public disclosure by law. Accordingly, each party wishes to ensure that such information shall not be used for any purpose other than the proceedings in this case.
Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, to protect such information, the parties to this action, by and through their respective counsel, enter into this stipulated protective order (hereafter, "Protective Order") as follows:
1. Application of Protective Order
All information, testimony, things or documents filed with the Court, or produced or given (either by a party or non-party) as part of discovery in this action shall be governed by this Protective Order, including without limitation all testimony, transcripts, exhibits, answers to interrogatories and other discovery requests, 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"). The provisions of this Protective Order shall apply to (i) the parties to this action (including any agents, employees, insurers, advisors, consultants, representatives, partners, successors, heirs and assigns); (ii) their respective counsel of record in this action (including other members of the respective legal teams who agree to be bound by the terms of this Protective Order, such as their partners, in-house counsel of a respective party, associates, employees, paralegals, expert consultants and expert witnesses) ("Counsel"); and (iii) any other person who produces or discloses Confidential Material in this action and who agrees to be bound by the terms of this Protective Order.
2. Confidential Designation
A party may designate as "CONFIDENTIAL" the whole or portion of any document or thing that the party reasonably believes in good faith, in accordance with F.R.C.P. Rule 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 party may designate as "CONFIDENTIAL - ATTORNEYS' EYES ONLY" the whole or that portion of any confidential information that the party reasonably believes in good faith, in accordance with F.R.C.P. Rule 26(c) contains highly sensitive information that, if disclosed to a competitor or a person who the party reasonably believes to have interests that are aligned with 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 credit information, addresses and/or social security numbers). In addition, for confidential information which a party in good faith reasonably believes contains especially sensitive information, the disclosure of which to a competitor or a person who the party reasonably believes to have interests that are aligned with a competitor would likely result in harm to that party may further designate such confidential information as "COMPETITIVELY SENSITIVE." If another party's counsel believes that such designation of a document or documents is overly broad, they may seek relief from this order.
4. Designating and Marking Confidential Material. Confidential Matter 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 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 Protective 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 (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 8 or 9 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 Confidential Material 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 Material by making such designation on the record during the deposition. The portions designated during the deposition as "CONFIDENTIAL" or "CONFIDENTIAL-ATTORNEYS' EYES ONLY" shall be separated and treated as provided in Paragraphs 8 or 9 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 those portions of the deposition transcript (including exhibits) as Confidential Material (as appropriate). All portions of any deposition transcript not designated as Confidential Material 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
Material (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 Material as soon as reasonably possible 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. Any motion challenging a designation must be made in strict compliance with Local Rules 37-1 and 37-2 (including the Joint Stipulation requirement). 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 protective order under F.R.C.P. Rule 26(c) have been satisfied. Notwithstanding the existence of any challenge to any designation made hereunder, the parties shall treat all Confidential Material 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 Confidential Material shall be used only for the purposes of this lawsuit and not for any other litigation, business, personal 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 8 or 9 to have access to such materials.
8. Disclosure of "Confidential-Attorneys' Eyes Only" Materials Confidential Material designated as "CONFIDENTIAL - ATTORNEYS' EYES ONLY" shall not be given, shown, made available ...