The opinion of the court was delivered by: Jeremy Fogel Howard R. Lloyd United States District Judge Magistrate
STIPULATED PROTECTIVE ORDER [Re: Docket No. 27]
MODIFIED BY THE COURT confidential, proprietary, or private information for which special protection from public disclosure 4 and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated Protective
1.PURPOSES AND LIMITATIONS
Disclosure and discovery activity in this action are likely to involve production of Order.
The parties acknowledge that this Order does not confer blanket
protections on all 7 disclosures or responses to discovery
and that the protection it affords from public disclosure and 8
use extends only to the limited information or items that are
entitled to confidential treatment under 9 the applicable
legal principles. The parties further acknowledge, as set forth in
Section 14.4, below, 10 that this Stipulated Protective
Order does not entitle them to file confidential information under
11 seal; Civil Local Rule 79-5 sets forth the procedures
that must be followed and the standards that 12 will be
applied when a party seeks permission from the court to file material
2.1 Challenging Party: a Party or Non-Party that challenges the
designation of information or items under this Order.
is generated, stored or maintained) or tangible things
that qualify for protection under Federal Rule 18 of Civil
(as well as their support staff).
that it produces in disclosures or in responses to
discovery as "CONFIDENTIAL" or "HIGHLY 2.6 Disclosure or Discovery Material: all items or information,
regardless of the
medium or manner in which it is generated, stored, or
maintained (including, among other things, 26 testimony,
transcripts, and tangible things), that are produced or generated in
disclosures or responses to discovery in this matter.
2.2 "CONFIDENTIAL" Information or Items: information (regardless of how it 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel 2.5 Designating Party: a Party or Non-Party that designates information or items pertinent to the litigation who (1) has been retained by a Party or its counsel to serve as an expert 3 witness or as a consultant in this action, (2) is not a past or current employee of a Party or of a Party or of a Party's competitor. or Items: extremely sensitive "Confidential Information or Items," disclosure of which to another 2.7 Expert: a person with specialized knowledge or experience in a matter Party's competitor, and (3) at the time of retention, is not anticipated to become an employee of a 2.8 "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY" Information Party or Non-Party would create a substantial risk of serious harm that could not be avoided by less restrictive means. Counsel does not include Outside Counsel of Record or any other outside counsel. legal entity not named as a Party to this action. this action but are retained to represent or advise a party to this action and have appeared in this 16 action on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party. employees, consultants, retained experts, and Outside Counsel of Record (and their support staffs).
Material in this action. services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, storing, or retrieving data in any form or medium) and their employees and subcontractors. as "CONFIDENTIAL," or as "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY."
2.10 House Counsel: attorneys who are employees of a party to this action. House 2.11 Non-Party: any natural person, partnership, corporation, association, or other 2.12 Outside Counsel of Record: attorneys who are not employees of a party to 2.13 Party: any party to this action, including all of its officers, directors, 2.14 Producing Party: a Party or Non-Party that produces Disclosure or Discovery 2.15 Professional Vendors: persons or entities that provide litigation support 2.16 Protected Material: any Disclosure or Discovery Material that is designated a Producing Party.
Material (as defined above), but also (1) any information copied or extracted from Protected 2.17 Receiving Party: a Party that receives Disclosure or Discovery Material from.SCOPE The protections conferred by this Stipulation and Order cover not only Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, conversations, or presentations by Parties or their Counsel that might reveal Protected Material. However, the protections conferred by this Stipulation and Order do not cover the 9 following information: (a) any information that is in the public domain at the time of disclosure to a Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as a result of publication not involving a violation of this Order, including becoming part of the public record through trial or otherwise; and (b) any information known to the Receiving Party prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the information lawfully and under no obligation of confidentiality to the Designating Party. Any use of Protected Material at trial shall be governed by a separate agreement or order.
Even after final disposition 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 19 order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and defenses in this action, with or without prejudice; and (2) final judgment herein after the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the time limits for filing any motions or applications for extension of time pursuant to applicable law. For a period of six months after the final disposition of this litigation, this court will retain jurisdiction to enforce the terms of this order.
5.1 Exercise of Restraint and Care in Designating Material for Protection. Each DURATION.DESIGNATING PROTECTED MATERIAL
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.
To the extent it is practical to do so, the Designating Party must designate for protection only those parts of 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 not warranted are not swept unjustifiably within the ambit of this Order. 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. designated for protection do not qualify for protection at all or do not qualify for the level of protection initially asserted, that Designating Party must promptly notify all other parties that it is withdrawing the mistaken designation.
Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, Mass, indiscriminate, or routinized designations are prohibited. Designations that If it comes to a Designating Party's attention that information or items that it
5.2 Manner and Timing of Designations. Except as otherwise provided in this Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 15 designated before the material is disclosed or produced.
(a) for information in documentary form (e.g., paper or
documents, but excluding transcripts of depositions or
other pretrial or trial proceedings), that the
ATTORNEYS' EYES ONLY" to each page that contains protected material.
If only a portion or 21 portions of the material on a page
qualifies for protection, the Producing Party also must clearly
identify the protected portion(s) (e.g., by making appropriate
markings in the margins) and must specify, for each
portion, the level of protection being asserted.
inspection need not designate them for protection until
after the inspecting Party has indicated 26 which material
it would like copied and produced. During the inspection and before
the 27 designation, all of the material made available for
inspection shall be deemed "HIGHLY
CONFIDENTIAL -- ATTORNEYS' EYES ONLY."
After the inspecting Party has identified Producing Party affix the legend "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - A Party or Non-Party that makes original documents or materials available for documents it wants copied and produced, the Producing Party must determine which documents, or portions thereof, qualify for protection under this Order. Then, before producing the specified documents, the Producing Party must affix the appropriate legend ("CONFIDENTIAL" or Material. If only a portion or portions of the material on a page qualifies for protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins) and must specify, for each portion, the level of protection being asserted. proceedings, that the Designating Party identify on the record, before the close of the deposition, 10 hearing, or other proceeding, all protected testimony and specify the level of protection being asserted. When it is impractical to identify separately each portion of testimony that is entitled to protection and it appears that substantial portions of the testimony may qualify for protection, the Designating Party may invoke on the record (before the deposition, hearing, or other proceeding is concluded) a right to have up to days to identify the specific portions of the testimony as to which protection is sought and to specify the level of protection being asserted. Only those portions 16 of the testimony that are appropriately designated for protection within the days shall be covered by the provisions of this Stipulated Protective Order. Alternatively, a Designating Party may specify, at the deposition or up to 21 days afterwards if that period is properly invoked, that the 19 entire transcript shall be treated as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL
Parties shall give the other parties notice if they reasonably expect a deposition, hearing or other proceeding to include Protected Material so that the other parties can ensure that 23 only authorized individuals who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A) are present at those proceedings. The use of a document as an exhibit at a deposition 25 shall not in any way affect its designation as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL -- 26
Transcripts containing Protected Material shall have an obvious legend on the title page that the transcript contains Protected Material, and the title page shall be followed by a list of "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY") to each page that contains Protected
(b) for testimony given in deposition or in other pretrial or
trial all pages (including line numbers as appropriate) that have been
designated as Protected Material 2 and the level of
protection being asserted by the Designating Party. The Designating
Party shall 3 inform the court reporter of these
requirements. Any transcript that is prepared before the 4
expiration of a 21-day period for designation shall be treated during
that period as if it had been 5 designated "HIGHLY
CONFIDENTIAL -- ATTORNEYS' EYES ONLY" in its entirety unless 6
otherwise agreed. After the expiration of that period, the
transcript shall be treated only as actually designated.
for any other tangible items, that the Producing Party
affix in a prominent place on the exterior of the
container or containers in which the information or item is stored the
legend "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY." If
only a 12 portion or portions of the information or item
warrant protection, the Producing Party, to the extent
practicable, shall identify the protected portion(s) and specify the
level of protection being asserted.
ATTORNEYS' EYES ONLY." 21
ATTORNEYS' EYES ONLY." 27
to designate qualified information or items does not,
standing alone, waive the Designating Party's right to
secure protection under this Order for such material. Upon timely
correction of a 17 designation, the Receiving Party must
make reasonable efforts to assure that the material is treated
in accordance with the provisions of this Order.
6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of confidentiality at any time. Unless a prompt challenge to a Designating Party's confidentiality designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to challenge a confidentiality designation by electing not to mount a challenge promptly after the original designation is disclosed. process by providing written notice of each designation it is challenging and describing the basis for 28 each challenge. To avoid ambiguity as to whether a challenge has been made, the written notice (c) for information produced in some form other than documentary and 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure
6.CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution must recite that the challenge to confidentiality is being made in accordance with this specific 2 paragraph of the Protective Order. The parties shall attempt to resolve each challenge in good faith 3 and must begin the process by conferring directly (in voice to voice dialogue; other forms of 4 communication are not sufficient) within 14 days of the date of service of notice. In conferring, the 5
Challenging Party must explain the basis for its belief that the
confidentiality designation was not 6 proper and must give
the Designating Party an opportunity to review the designated
material, to reconsider the circumstances, and, if no
change in designation is offered, to explain the basis for the 8
chosen designation. A Challenging Party may proceed to the next
stage of the challenge process only if it has engaged in
this meet and confer process first or establishes that the Designating
Party is unwilling to participate in the meet and confer
process in a timely manner.
12 intervention, the Designating Party shall file and serve a motion to retain confidentiality under Civil 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court
Local Rule 7 (and in compliance with Civil Local Rule 79-5, if
applicable) within 21 days of the 14 initial notice of
challenge or within 14 days of the parties agreeing that the meet and
confer process 15 will not resolve their dispute, whichever
is earlier. Each such motion must be accompanied by a 16
competent declaration affirming that the movant has complied with the
meet and confer 17 requirements imposed in the preceding
paragraph. Failure by the Designating Party to make such a 18
motion including the required declaration within 21 days (or 14
days, if applicable) shall 19 automatically waive the
confidentiality designation for each challenged designation. In
addition, 20 the Challenging Party may file a motion
challenging a confidentiality designation at any time if 21
there is good cause for doing so, including a challenge to the
designation of a deposition transcript 22 or any portions
thereof. Any motion brought pursuant to this provision must be
accompanied by a 23 competent declaration affirming that the
movant has complied with the meet and confer 24 requirements
imposed by the preceding paragraph. 25
Designating Party and shall be by a preponderance of the evidence. Frivolous challenges and those 27 made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on other 28 parties) may expose the Challenging Party to sanctions. Unless the Designating Party has waived the confidentiality designation by failing to file a motion to retain confidentiality as described 2 above, all parties shall continue to afford the material in question the level of protection to which it is entitled under the Producing Party's designation until the court rules on the challenge.
7.1 Basic Principles. A Receiving Party may use Protected Material
that is disclosed or produced by another Party or by a Non-Party
in connection with this case only for 7 prosecuting,
defending, or attempting to settle this litigation. Such Protected
Material may be 8 disclosed only to the categories of
persons and under the conditions described in this Order. When 9
the litigation has been terminated, a Receiving Party must
comply with the provisions of section 15 10 below (FINAL
DISPOSITION). Protected Material must be stored and maintained by a
Party at a location and in a secure manner that ensures that access is
limited to the persons authorized under this Order.
ordered by the court or permitted in writing by the
Designating Party, a Receiving Party may disclose any
information or item designated "CONFIDENTIAL" only to:
well as employees of said Outside Counsel of Record to
whom it is reasonably necessary to disclose 18 the
information for this litigation and who have signed the
"Acknowledgment and Agreement to Be
(b) the officers, directors, and employees (including ...