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Ishii v. Sears

November 12, 2010


The opinion of the court was delivered by: Honorable Robert N. Block, Magistrate Judge

[PROPOSED] STIPULATED PROTECTIVE ORDER Courtroom 10C Filing Date: April 19, 2010 First Amended Complaint Filed: July 16, 2010 Second Amended Complaint Filed: August 17, 2010


Plaintiffs Reuben Ishii, Mayumi Ishii, Kayden Ishii, and Reuben Ishii as Successor in Interest of Kayley Ishii, deceased (collectively, "Plaintiffs"), and Defendants Electrolux Home Products, Inc. and Sears, Roebuck and Co. (collectively "Defendants") assert that they possess confidential information in the form of trade secrets or other business, personal, privileged, and/or technical information, related to the subject matter of this litigation. The parties expect that such information will be disclosed by Plaintiffs and/or Defendants during discovery in this litigation. The parties desire to limit any disclosure and prevent the use of such information for purposes other than the prosecution and defense of this action. In addition, confidential information may be produced by non-parties. This Stipulated Protective Order ("Protective Order") shall govern any document, material, item, testimony, information, or thing produced, served, generated or obtained during the discovery process or otherwise obtained in connection with this litigation, including but not limited to, entry onto land or premises and inspection of books, records documents and tangible things. The parties hereby stipulate to the following terms of a protective order regarding confidential information, and respectfully request that the Court enter this Protective Order.


1. "Confidential Information" shall mean all originals and copies of documents in paper or electronic form and other materials or information not generally available to the public that a party to this action or a non-party believes in good faith contain confidential or proprietary technical, business, or personal information. By way of example, and not limitation, Confidential Information may include trade secrets or confidential research, inventory and unreleased products, current production processes in effect and future plans, sales, costs, profit/losses, financing, business or strategic plans, marketing plans or assessments, market forecasts, new product ideas or developments, technical information relating to design, development, manufacture, assembly, marketing, and sale of products or services, test and system operation data, confidential information related to competitive bidding, medical records, and employment information including, without limitation, employment agreements, personnel files, personnel records, and earnings statements. Any information derived from Confidential Information also constitutes Confidential Information to the extent such derived information embodies, contains, or discloses any Confidential Information.

2. The term Confidential Information shall include all information, documents and things incorporating or reflecting Confidential Information including, without limitation, copies, drafts, summaries, compilations, abstracts, notes, derivatives, photographs, negatives, blow-ups, exhibits, communications in written or oral form, and similar things.

3. The parties agree that they will not designate any document, testimony or other material as Confidential Information unless they believe in good faith that the information so designated satisfies the criteria set forth in this Protective Order.

4. The parties agree that to the extent that information is designated as Confidential Information, the fact of such designation shall not constitute an express or implied waiver of any attorney-client or work product privilege with respect to such information.


5. No item shall qualify for protection as Confidential Information if such item: (a) is disclosed in a printed publication available to the public or trade by reason of dissemination by one having the right and authorization to do so; (b) is independently developed by the receiving party, or comes to be known to the receiving party through means not constituting breach of any proprietary or confidential relationship or obligation or breach of this Protective Order; (c) is lawfully in the receiving party's possession prior to the disclosure unless the party's previous lawful receipt of the information is subject to an obligation of non-disclosure; or (d) is lawfully received at a later date by the receiving party from a non-party who has the right or authorization to make such a disclosure. Further, Confidential Information shall not be construed to cover items obtained by a party independently of this litigation, when the item was obtained lawfully and without any obligation of confidentiality to a third party.


6. Confidential Information shall be designated and marked as follows:

a. Documents: Any document produced during discovery or otherwise disclosed in this action, and any information contained therein, may be designated by the producing party or non-party as Confidential Information by placing the following legend, or equivalent thereof, on any such document prior to production, service, filing, or presentation to the Court: "DESIGNATED AS CONFIDENTIAL INFORMATION FOR PURPOSES OF THIS LITIGATION ONLY." Such legend shall be placed upon the first page of the document containing Confidential Information and upon each page within such document considered to contain Confidential Information.

b. Electronic or Non-Written Materials: Any electronic or non-written Confidential Material (e.g., videotape, audio tape, computer disk, etc.) may be designated as such by labeling the outside of such non-written material as "DESIGNATED AS CONFIDENTIAL INFORMATION FOR PURPOSES OF THIS LITIGATION ONLY." If the Producing Party generates any "hard copy" transcription or printout from any designated non-written materials, then the instructions in paragraph (6)(a) will apply. In the event a Receiving Party generates any "hard copy" transcription or printout from any such designated non-written materials, the person who generates such "hard copy" transcription shall take reasonable steps to maintain the confidentiality of such materials.

c. Other Physical Exhibits: The confidential status of a physical exhibit shall be indicated by placing a label on said physical exhibit designating it as "DESIGNATED AS CONFIDENTIAL INFORMATION OF [DESIGNATING PARTY] FOR PURPOSES OF THIS LITIGATION ONLY."

d. Responses to Interrogatories/Requests for Admission: In the case of information incorporated in answers to interrogatories or responses to requests for admission, the appropriate legend shall be placed on each page of the answer or response.

e. Deposition Proceedings: Designation of portions, or the entirety, of deposition transcripts (including exhibits) as Confidential Information shall be made by a statement to such effect on the record in the course of the deposition, or upon review of such transcript by counsel for the designating party within thirty (30) calendar days after counsel's receipt of the transcript. Until the expiration of the thirty (30) calendar day time period, all deposition transcripts will be treated by the parties as Confidential Information, in their entirety. Upon designation of the transcript on the record during the deposition, the party designating a portion of the transcript confidential shall be allowed to exclude all persons to whom access to Confidential Information has been denied under the terms of the Protective Order for the portion of the deposition that contains Confidential Information. The Court Reporter or other person recording the proceedings shall segregate any portion of the transcript of the deposition which has been stated to contain Confidential Information and may furnish copies of these segregated portions, in a sealed envelope, only to the deponent as required by law, to the Court, and to counsel for the parties bound by the terms of this Protective Order.

Designations made within thirty (30) calendar days after receipt of the transcript of a deposition shall be made by sending written notice (by facsimile if possible) to the Court Reporter, to counsel for all parties to this action, and to any other person known to have a copy of said transcript. The notice shall reference this Protective Order and identify the pages and/or exhibits or the transcript so designated. All copies of transcripts thus designated shall be marked with a notice indicating the confidentiality of the material therein and shall be governed by the terms of this Protective Order.

7. Court Procedures: In accordance with Local Rule 79-5.1, if any papers to be filed with the Court contain information and/or documents that have been designated as "Confidential Information," the proposed filing shall be accompanied by an application to file the papers or the portion thereof containing the designated information or documents (if such portion is segregable) and if appropriate, the application itself under seal; and the application shall be directed to the judge to whom the papers are directed. For motions, the parties shall publicly file a redacted version of the motion and supporting papers.


8. Access to Confidential Information shall be limited to those individuals identified in the following paragraphs and the Court, the jury, employees of the Court, court reporters who transcribe depositions in this case, and videographers who videotape depositions in this case.

9. In the absence of written permission from the designating party or further order of the Court, Confidential Information shall not be disclosed to any person other than:

a. any named party to this litigation, including any present or former employee or agent thereof to whom it is necessary that the designated material be shown for purposes of the litigation;

b. outside counsel for parties to this litigation, and persons working solely in secretarial, clerical, and paralegal capacities and who are assisting those attorneys in this action, and persons working for outsourced copying ...

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