The opinion of the court was delivered by: Paul L. Abrams United States Magistrate Judge
And related counterclaims.
PROTECTIVE ORDER RE CONFIDENTIAL INFORMATION, UPON STIPULATION OF THE PARTIES
1. PURPOSES, GOOD CAUSE STATEMENT AND LIMITATIONS
Disclosure and discovery activity in this action are likely to involve production of confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation would be warranted. The parties have stipulated, and the Court finds, that good cause exists for the entry of a Protective Order regarding Confidential Information for each of the following reasons:
(i) The parties are in the business of producing and selling wines, and in that respect compete within the wine industry. The wine industry is competitive, and the parties have had the practice of maintaining as private and confidential certain information that they believe to be competitively sensitive.
(ii) During the course of this litigation the parties may exchange, informally for purposes of settlement discussions or other litigation-related purposes, or produce formally during discovery, information which they have heretofore maintained as confidential, and which discusses, embodies or reveals proprietary business methods and procedures, confidential income, profit or pricing information, confidential information regarding customers or sources of supply, confidential marketing plans and strategies, competitive plans and strategies, artwork mockups and creative design proposals for products, listings of varietal competitors, lists of brand support tools (i.e., complementary goods such as pencils, key chains, t-shirts, etc.) and volume/price of the same, design proposals, lists of shipments/depletions/points of distribution/volume splits, case goods inventories, lists of buyer accounts and contact information, internal presentations containing budget information regarding launch of products, distributor details, pricing strategies, revenue and sales information, advertising expenditures and brand launch plans, volume distribution targets, and other information that the parties may contend contains or constitutes trade secrets or material non-public, competitively sensitive, proprietary or confidential information ("Confidential Information," as hereafter defined).
(iii) Disclosure of the Confidential Information to any competitor, whether an opposing party or third party, without the protections of a Stipulation and Protective Order would create a substantial risk of serious and irreparable competitive harm to the parties;
(iv) Maintaining the confidentiality of Confidential Information for purposes of this litigation without unnecessary dissemination would serve the public interest, by allowing for resolution of the present dispute without at the same time creating substantial risk of serious and irreparable competitive harm to one or more of the parties.
The parties acknowledge that this Order does not confer blanket protections on all disclosures or responses to discovery and that the protection it affords extends only to the limited information or items that are entitled under the applicable legal principles to treatment as confidential. The parties further acknowledge, as set forth in Section 10, below, that this Stipulated Protective Order creates no entitlement to file confidential information under seal; Local Rule 79-5 sets forth the procedures that must be followed when a party seeks permission from the court to file material under seal.
2.1 Party: any party to this action, including all of its officers, directors, employees, consultants, retained experts, and outside counsel (and their support staff).
2.2 Disclosure or Discovery Material: all items or information, regardless of the medium or manner generated, stored, or maintained (including, among other things, testimony, transcripts, or tangible things) that are produced or generated in disclosures or responses to discovery in this matter.
2.3 "Confidential" Information or Items: information (regardless of how generated, stored or maintained) or tangible things that qualify for protection under standards developed under F.R.Civ.P. 26(c).
2.4 "Highly Confidential -- Attorney's Eyes Only" Information or Items: extremely sensitive "Confidential Information or Items" whose disclosure to another Party or nonparty would create a substantial risk of serious injury that could not be avoided by less restrictive means.
2.5 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party.
2.6 Producing Party: a Party or non-party that produces Disclosure or Discovery Material in this action.
2.7 Designating Party: a Party or non-party that designates information or items that it produces in disclosures or in responses to discovery as "Confidential" or "Highly Confidential -- Attorney's Eyes Only."
2.8 Protected Material: any Disclosure or Discovery Material that is designated as "Confidential" or as "Highly Confidential -- Attorney's Eyes Only."
2.9 Expert: a person with specialized knowledge or experience in a matter pertinent to the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a consultant in this action. This definition includes a professional jury or trial consultant retained in connection with this litigation.
For each expert (including consultants and investigators) to whom any party desires to disclose Protected Material, such party must first identify in writing to the attorneys for the Designating Party the following information: the expert's full name, professional address, educational background, all present employment and consultancies, all prior full-time employment and consultancies within the last four years, and a list of all cases in which the expert or consultant has testified at a deposition or in court within the last four years. The party shall also include a copy of the proposed expert or consultant's signed "Agreement to Be Bound by Protective Order" (Exhibit A) attached to this Protective Order indicating that they have read and agree to be bound by the terms of this Protective Order.
Counsel of record for the Designating Party shall have ten (10) calendar days from receipt of such notice and "Agreement to Be Bound by Protective Order" (Exhibit A) to object to disclosure of such Protected Material to such expert. Any and all such objections must be made in writing with all such grounds stated with specificity. The parties shall attempt to resolve such objections informally. If any objection cannot be resolved within ten (10) calendar days after notice by the objecting party, the party seeking to disclose the Protected Material to the expert may move the Court for an order allowing the disclosure utilizing the procedure set forth in Local Rule 37. If the parties want to file the Joint Stipulation required by Local Rule 37 under seal, the parties may file a stipulation to that effect or the moving party may file an ex parte application making the appropriate request. The parties must set forth good cause in the stipulation or ex parte application as to why the Joint Stipulation or portions thereof should be filed under seal. In the event that an objection is made and not resolved between and among the parties, disclosure of the Protected Material shall not be made except by order of the Court (or to any limited extent upon which the parties may agree).
2.10 Professional Vendors: persons or entities that provide litigation support services (e.g., photocopying; videotaping; translating; preparing exhibits or demonstrations; organizing, storing, retrieving data in any form or medium; etc.) and their employees and subcontractors.
The protections conferred by this Stipulation and Order cover not only Protected Material (as defined above), but also any information copied or extracted therefrom, as well as all copies, excerpts, summaries, or compilations thereof, plus testimony, conversations, or presentations by parties or counsel to or in court or in other settings that might reveal Protected Material.
Even after the termination of this litigation, the confidentiality obligations imposed by this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order otherwise directs.
5. DESIGNATING PROTECTED MATERIAL
5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or non-party that designates information or items for protection under this Order must take care to limit any such designation to specific material that qualifies under the appropriate standards. Mass, indiscriminate, or routinized designations are prohibited, although an entire document may receive an appropriate designation based on any portion of it being subject to such designation.
Designations that are shown to be clearly unjustified, or that have been made for an improper purpose (e.g., to unnecessarily encumber or retard the case development process, or to impose unnecessary expenses and burdens on other parties), expose the Designating Party to sanctions.
If it comes to a Party's or a non-party's attention that information or items that it designated for protection do not qualify for protection at all, or do not qualify for the level of protection initially asserted, that Party or non-party must promptly notify ...