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United States v. Boeing Co.

August 13, 2010

UNITED STATES OF AMERICA, PLAINTIFF,
v.
THE BOEING COMPANY, DEFENDANT.



The opinion of the court was delivered by: Margaret A. Nagle United States Magistrate Judge

STIPULATED ORDER GOVERNING USE OF PROTECTED INFORMATION AND NON-WAIVER OF PRIVILEGE

Based on the parties' Stipulation For Entry of Stipulated Order Governing Use Of Protected Information And Non-Waiver Of Privilege ("Stipulated Protective Order"), filed on June 22, 2010, the terms of the Stipulated Protective Order are adopted as an order of this Court, except to the extent, as set forth below, that those terms have been modified by the Court's amendment of paragraph 13 of the proposed Stipulated Protective Order.

The parties are expressly cautioned that the designation of any information, document, or thing as Protected Information does not, in and of itself, create any entitlement to file such information, document, or thing, in whole or in part, under seal. Accordingly, reference to this Stipulated Protective Order or to the parties' designation of any information, document, or thing as Protected Information is wholly insufficient to warrant a filing under seal.

There is a strong presumption that the public has a right of access to judicial proceedings and records in civil cases. In connection with non-dispositive motions, good cause must be shown to support a filing under seal. The parties' mere designation of any information, document, or thing as Protected Information does not -- without the submission of competent evidence, in the form of a declaration or declarations, establishing that the material sought to be filed under seal qualifies as confidential, privileged, or otherwise protectible - constitute good cause. Further, if sealing is requested in connection with a dispositive motion or trial, then compelling reasons, as opposed to good cause, for the sealing must be shown, and the relief sought shall be narrowly tailored to serve the specific interest to be protected. See Pintos v. Pacific Creditors Ass'n, 605 F.3d 665, 677-79 (9th Cir. 2010). For each type of information, document, or thing sought to be filed under seal in connection with a dispositive motion or trial, the party seeking protection must articulate compelling reasons, supported by specific facts and legal justification, for the requested sealing order. Again, competent evidence supporting the application to file documents under seal must be provided by declaration.

Any document that is not confidential, privileged, or otherwise protectible in its entirety will not be filed under seal if the confidential portions can be redacted. If documents can be redacted, then a redacted version for public viewing, omitting only the confidential, privileged, or otherwise protectible portions of the document, shall be filed. Any application that seeks to file documents under seal in their entirety should include an explanation of why redaction is not feasible.

I. PURPOSE OF ORDER GOVERNING THE USE OF PROTECTED INFORMATION

1. The discovery to be conducted in this case has required the parties, plaintiff United States of America (the "United States") and defendant The Boeing Company ("Boeing"), to disclose Protected Information (as defined herein). The United States and Boeing are referred to collectively herein as the "Parties" and individually as a "Party."

2. This Stipulated Order governs the use of Protected Information during all discovery and pre-trial proceedings in this case.

3. The terms "Document" and "Documents" as used herein shall have the broadest possible meaning pursuant to Federal Rule of Civil Procedure 34(a), including electronically stored information. The term "Document" shall include, without limitation, written or printed matter of any kind, including originals, conforming copies, and non-conforming copies (e.g., a copy of an original with an added notation). The terms "Document" and "Documents" shall also include, without limitation, correspondence, letters, reports, summaries, spreadsheets, invoices, memoranda, notes, messages, communications, telexes, cables, telecopies, telegrams, facsimiles, e-mails, microfilm, compact disks (CDs), digital versatile disks (DVDs), photographs, charts, graphs, maps, drawings, prints, and films and all manner of electronic data processing storage.

II. DESIGNATION OF PROTECTED INFORMATION

4. Whenever counsel for either Party believes that Documents that have been produced in this action by a Party or a non-party, formally or informally, deposition transcripts, responses to interrogatories, or responses to requests for admission (hereinafter, collectively, "Materials") contain or may contain (1) trade secrets or other confidential research, development, or commercial information within the meaning of Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure, and/or (2) "Technical data," as defined in 22 C.F.R. § 120.10 (hereinafter, collectively, "Protected Information"), he or she may designate such Material as containing Protected Information by affixing on the Material the legend "Protected Information". The designation shall be affixed to each and every page of the Material. For Material produced in a non-paper medium (e.g., videotape, audio tape, computer disks, etc.) where the Documents stored on the medium have not been marked with the legend, the legend shall be affixed to the outside of the medium or its container.

5. If a Party producing Documents elects to produce them for inspection rather than producing copies, the designation of Protected Information need not be made in advance of the initial inspection by the Party to which the Documents are being produced; the designation instead may be made at or prior to the time that the Documents designated for copying are produced.

6. All Materials labeled as Protected Information prior to or after the entry of this Stipulated Order shall be considered as designated under and subject to the terms of this Stipulated Order.

7. All persons receiving copies of Materials designated as Protected Information shall maintain such Protected Information in his or her possession in a manner sufficient to protect such Materials against unauthorized disclosure. The Parties shall advise all witnesses, consultants and experts who are provided with Material designated as Protected Information after the date of this Stipulated ...


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