The opinion of the court was delivered by: Honorable Andrew J. Guilford
PROTECTIVE ORDER RE: CONFIDENTIAL INFORMATION
WHEREAS, to facilitate the production and receipt of information during discovery in the above-captioned litigation ("the Litigation"), the parties agree and stipulate, through their respective counsel, to the entry of the following Protective Order for the protection of Restricted Materials (as defined herein) that may be produced or otherwise disclosed during the course of this Litigation by any party or non-party. The Court has been fully advised and has found good cause for entry of this Order.
Accordingly, IT IS HEREBY ORDERED that the terms and conditions of this Protective Order shall govern the handling of discovery materials in the Litigation:
1. Applicability of Order: This Order does not and will not govern any trial proceedings in this Litigation, but will otherwise be applicable to and govern the handling of any and all "Discovery Material," as defined in section 2(a) below.
2. Definitions: a. The term "Discovery Material" shall mean any and all documents, information, electronically stored information, depositions, deposition exhibits, interrogatory responses, responses to requests for admissions, responses to requests for production of documents, and all other discovery obtained pursuant to the Federal Rules of Civil Procedure by or from a party in connection with the Litigation. As used herein, the term "document" shall have the broadest meaning allow under Federal Rule of Evidence 1001 and the Federal Rules of Civil Procedure and shall include, without limitation, the following items, whether printed, reproduced, stored (electronically or otherwise) or written by hand, or recorded or created by any process, and whether or not claimed to be privileged or otherwise excludable from discovery, namely: notes, correspondence, reports, communications, telexes, telegrams, facsimiles, e-mails, electronically stored information, computer data, computer discs, videotapes, magnetic tapes, memoranda, summaries or records of telephone conversations, research reports, notebooks, charts, lists, schedules, plans, proposals, drawings, photographs, diagrams, diaries, studies, evaluations, financial analyses, worksheets, financial model spreadsheets, minutes or records of meetings including directors' meetings and committee meetings, opinions or reports of consultants, agreements, contracts, reports or summaries of negotiations, court papers, administrative agency papers, transcripts, press releases, radio tapes, story boards, recordings, and drafts of documents. The term document shall include all non-identical copies or version of any of the above.
b. The term "Producing Party" or "Disclosing Party" shall mean any party or non-party that gives testimony or produces documents or other Discovery Material, to any other party.
c. The term "Receiving Party" shall refer to the parties to this action that receive Discovery Material from a Producing Party.
d. The term "Restricted Material"*fn1 shall mean any information that a party believes in good faith to be confidential or sensitive information, including, but not limited to, trade secrets, research, design, development, financial, technical, marketing, planning, personal, or commercial information, as such terms are used in Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure and any applicable case law interpreting Rule 26(c)(1)(G) or the former Rule 26(c)(7).
3. The Confidentiality and Common Interest Agreement in the Bankruptcy Cases: The parties hereby acknowledge the existence of the "Confidentiality and Common Interest Agreement" and "Certificate Regarding Confidentiality and Common Interest Agreement" that was entered into in connection with the Chapter 11 cases filed in the United States Bankruptcy Court for the District of Delaware under the caption In re Freedom Communications Holdings, Inc., et al., Case No. 09-13046)(BLS) (the "Bankruptcy Cases"), copies of which are attached hereto as Exhibit A. The parties further agree that any documents, information and/or things produced in this Litigation that were produced or otherwise obtained in the Bankruptcy Cases and designated as "CONFIDENTIAL INFORMATION," "PRIVILEGED INFORMATION" or "CONFIDENTIAL AND PRIVILEGED INFORMATION" pursuant to Paragraph 6(a) of the Confidentiality and Common Interest Agreement shall be governed by the terms of the Confidentiality and Common Interest Agreement and further agree to be bound by the terms of the Certificate Regarding Confidentiality and Common Interest Agreement, except where such terms conflict with this Protective Order, and in those instances, if any, the terms of this Protective Order shall prevail.
4. Designation of Material: Any Producing Party may designate Discovery Material that is in their possession, custody or control to be produced to a Receiving Party as Restricted Material under the terms of this Order if the Producing Party in good faith reasonably believes that such Discovery Material contains non-public, confidential material as defined in section 2(c) above. The Producing Party must designate for protection only those parts of the material, documents, items, or oral or written communications that qualify, so that other portions of the material, documents, items, or communications for which protection is unnecessary are not subject to the limitations that apply to Restricted Material.
5. Exercise of Restraint and Care in Designating Material for Protection: Each party or non-party that designates Discovery Material for protection as Restricted Material under this Order must take care to limit any such designation to specific Discovery Material that qualifies under the appropriate standards. Mass, indiscriminate, or routine designations are prohibited and may subject the Producing Party to sanctions.
a. Designations that are shown to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily encumber or delay the case development process or to impose unnecessary expenses and burdens on other parties), expose the Producing Party to sanctions.
b. If it comes to a Producing Party's attention that Discovery Material that it designated as Restricted Material did not qualify for protection, that Producing Party must promptly notify all other Parties that it is withdrawing the mistaken designation. In such case, the Producing Party shall reproduce the Redesignated Discovery Material without the "Restricted" legend as provided in paragraph 32 below.
6. Designating Restricted Material: The designation of Discovery Material as Restricted Material for purposes of this Order shall be made in the following manner:
a. Documents: In the case of documents or other physical materials (apart from depositions or other pre-trial testimony), designation shall be made by affixing the legend "Restricted" to each page containing any Restricted Material.
b. Deposition and Other Proceedings: In the case of depositions or other pre-trial testimony, designation of the portion of the transcript (including exhibits) that contains Restricted Material shall be made (I) by a statement to such effect on the record during the proceeding in which the testimony is received, or (ii) by written notice served on counsel of record in this Litigation within thirty (30) business days after the receipt of the draft transcript of such proceeding. However, before such thirty (30) day period expires, all testimony, exhibits and transcripts of depositions or other testimony shall be treated as Restricted Material. All portions of deposition transcripts not designated Restricted Material shall be deemed not restricted.
c. Non-Written Materials:Any non-written Restricted Material (e.g., videotape, audio tape, computer disk, etc.) may be designated as such by labeling the outside of such non-written material designated as "Restricted." However, any written documents produced electronically (on CD or otherwise), shall affix the "Restricted" legend on those pages of the electronic documents that are designated as Restricted Material as required by paragraph 6(a) above. In the event a Receiving Party generates any "hard copy" transcription or printout from any designated non-written materials, the person who generates such "hard copy" transcription shall take reasonable steps to maintain the confidentiality of such materials and to affix a "Restricted" legend to the printout where appropriate.
7. Inadvertent Disclosure: The inadvertent failure to designate Discovery Material as Restricted does not constitute a waiver of such claim and may be remedied by prompt supplemental written notice upon discovery of the inadvertent disclosure, with the effect that such Discovery Material will be subject to the protections of this Order. The Receiving Party shall exercise good faith efforts to ensure that copies it makes of Discovery Material produced to it, and copies made by others who obtained such Discovery Material directly or indirectly from the Receiving Party, include the appropriate "Restricted" legend, to the same extent that the Discovery Material has been marked with the appropriate "restricted" legend by the Producing Party.
8. Notes of Restricted Material: Any notes, lists, memoranda, indices, compilations prepared or based on an examination of Restricted Material, that quote from or paraphrase Restricted Material with such specificity that the Restricted Material can be identified, or by reasonable logical extension can be identified, shall be accorded the same status of confidentiality as the underlying Restricted Material from which they are made and shall be subject to all of the terms of this Protective Order.
9. Notice To Non-Parties: Any Party issuing a subpoena to a non-party shall enclose a copy of this Protective Order with a request that, within ten (10) calendar days, the non-party either request the protection of this Protective Order or notify the issuing party that the non-party does not need the protection of this Protective Order or wishes to seek different protection. Any non-party who requests the protection of this Protective Order shall ...