The opinion of the court was delivered by: Hon. S. James Otero Hon. Ralph Zarefsky
NOTE: CHANGES MADE BY THE COURT
[PROPOSED] PROTECTIVE ORDER
STIPULATED PROTECTIVE ORDER
Plaintiff and Counterdefendant GARY-MICHAEL DAHL ("Plaintiff") and Defendants and Counterclaimants SWIFT DISTRIBUTION, INC. d/b/a ULTIMATE SUPPORT SYSTEMS, INC. ("Ultimate"), MICHAEL BELITZ, and ROBIN SLATON (collectively, "Defendants") agree that disclosure and discovery activity in the above-captioned lawsuit are likely to involve production of confidential, proprietary, and/or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation would be warranted. Such information likely will include, among other things, sensitive product information, product design and development materials, engineering materials, marketing and sales information, purchase orders, invoices, distributor information, and customer information relating to utility cart products (collectively, the "Sensitive Information").
Plaintiff and Defendants (collectively, the "Parties," or singularly, a "Party") respectfully believe that good cause exists to enter the instant Protective Order in order to protect the Sensitive Information from public disclosure. The Sensitive Information includes information and data that could be used by actual or potential competitors to gain an improper and unlawful competitive advantage in the marketplace. For example, the Sensitive Information includes, among other things, Ultimate's confidential communications among its employees and with its manufacturer regarding the design and development of its UC-80 ULTI-CART product and Ultimate's proprietary engineering drawings relating to that product. The Sensitive Information also includes, but may not be limited to, information and communications relating to Plaintiff's distribution arrangements, parts sourcing and manufacturing details, and sensitive pricing information.
The Parties are competitors in the design, manufacture, and sale of utility cart products for the music industry. Due to the competitive relationship between the Parties, it is highly likely that disclosure of the Sensitive Information of one Party, especially that Party's product design, development, financial, sales, and customer information regarding utility cart products, will provide an improper or unlawful competitive advantage to the other Party. This Protective Order is necessary to prevent such harm to each of the Parties. The Parties have attempted to draft this Protective Order narrowly and in a manner no more restrictive than necessary to protect the Sensitive Information from public disclosure.
IT IS HEREBY STIPULATED and agreed by and between counsel for the Parties that the terms and conditions of this Stipulated Protective Order shall be entered as follows:
1. The term "Confidential Information" shall mean and include information contained or disclosed in any materials, including documents, portions of documents, answers to interrogatories, responses to requests for admissions, trial testimony, hearing testimony, deposition testimony, and transcripts of trial testimony, hearings, and depositions, including data, summaries, and compilations derived therefrom that is deemed to be "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - FOR COUNSEL ONLY" in accordance with Paragraph 7, by any Party or witness to which it belongs. The phrases "ATTORNEY EYES ONLY" or "AEO" shall have the same meaning as "HIGHLY CONFIDENTIAL -- FOR COUNSEL ONLY."
2. The term "materials" shall include, but shall not be limited to: documents; correspondence; memoranda; e-mail messages; bulletins; blueprints; specifications; customer lists or other material that identify customers or potential customers; price lists or schedules or other matter identifying pricing; minutes; telegrams; letters; statements; cancelled checks; contracts; invoices; drafts; books of account; worksheets; notes of conversations; desk diaries; appointment books; expense accounts; recordings; photographs; motion pictures; compilations from which information can be obtained and translated into reasonably usable form through detection devices; sketches; drawings; notes (including laboratory notebooks and records); reports; instructions; disclosures; other writings; models and prototypes and other physical objects.
3. The term "discovery material" shall include all deposition testimony, all transcripts and other written or oral recordings of deposition or pre-trial or trial testimony, all answers, documents, and other discovery materials produced in response to notices of depositions, interrogatories, requests for admissions, requests for documents, or subpoenas in this action, as well as all information thereby disclosed or communicated, all copies and summaries thereof, and all references thereto.
4. The term "counsel" shall include outside counsel of record, and other attorneys, paralegals, secretaries, and other support staff employed in the law firms: KNOBBE, MARTENS, OLSON & BEAR, LLP and BUCHE & ASSOCIATES P.C. "Counsel" shall also include non-parties specifically retained by outside counsel of record to assist with copying and computer services necessary for document handling, and other litigation support personnel (e.g., graphic designers and animators), including trial consulting services and mock jurors retained by a Party who have read and all sign proper acknowledgements to be bound by the terms of this protective order.
5. This Protective Order shall govern all disclosures of discovery materials made pursuant to Rule 26(a) of the Federal Rules of Civil Procedure.
6. All discovery materials and materials of a non-public nature shall be used solely in connection with this litigation and not for any other purpose.
All discovery materials whose disclosure is restricted by this Protective Order shall not be disclosed to anyone except as provided herein.
7. Each Party or witness to this litigation that produces or discloses any materials, discovery materials or information that the producing Party or witness reasonably believes in good faith should be subject to this Protective Order may designate the same as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - FOR COUNSEL ONLY," as follows:
a. Designation as "CONFIDENTIAL": Any Party or witness may designate information as "CONFIDENTIAL" only if, in the reasonable and good faith belief of such Party or witness and its counsel that such material or discovery material is properly entitled to protection under Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure, and the information is of the following type: (i) a trade secret entitled to protection under the Uniform Trade Secrets Act, as adopted in California; (ii) technical, financial, business, or marketing information that the disclosing Party reasonably believes would cause competitive harm to the disclosing Party if it were publicly ...