The opinion of the court was delivered by: Magistrate: Hon. Robert N. Block
[PROPOSED] REVISED STIPULATED PROTECTIVE ORDER GOVERNING USE AND DISCLOSURE OF CONFIDENTIAL AND PROPRIETARY INFORMATION, PER FED. R. CIV. P. 26(c)(1)
Judge: Hon. James V. Selna
1. PURPOSES AND LIMITATIONS
At least some of the documents and information ("materials") being sought through discovery in the above-captioned action may be proprietary, trade secret, or other confidential information, as is contemplated by Federal Rule of Civil Procedure 26(c) for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, the Court hereby enters the following Stipulated Protective Order ("Order") in this action. The purpose of this Order is to protect the confidentiality of such materials as much as practicable during the litigation. This Order does not confer blanket protections on all disclosures or responses to discovery and that the protection it affords from public disclosure and use extends only to the limited information or items that are entitled to confidential treatment under the applicable legal principles.
Additionally, as set forth in Paragraph 6.5 below, this Order creates no entitlement to file confidential information under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and reflects the standards that will be applied when a party seeks permission from the Court to file material under seal.
2. DEFINITIONS 2.1 The term "Challenging Party" shall mean a Party that challenges the designation of information or items under this Order.
2.2 The term "CONFIDENTIAL" Information or items shall mean and include information contained or disclosed in any materials, regardless of how generated, stored, or maintained, including documents, portions of documents, answers to interrogatories, responses to requests for admissions, deposition testimony, transcripts of depositions, testimony from previous trials, and trial transcripts from previous trials, including data, summaries, and compilations derived therefrom, that qualify for protection under Federal Rule of Civil Procedure 26(c); provided, however, that testimony from previous trials and trial transcripts from previous trials shall not be deemed "CONFIDENTIAL" if such trial testimony is already a matter of public record.
2.3 The term "Counsel" shall mean outside counsel of record, and other attorneys, paralegals, secretaries, and other support staff employed in the law firms of Pillsbury Winthrop Shaw Pittman LLP, Girardi Keese, and the Disability Rights Legal Center.
2.4 The term "Designating Party" shall mean a Party or Non-Party that designates information or items that it produces in disclosures or in responses to discovery as "Protected Material," as defined herein.
2.5 The term "Disclosure" or "Discovery Material" shall mean all items or information, regardless of the medium or manner in which it is generated, stored, or maintained (including, among other things, testimony, transcripts, and tangible things), that are produced or generated in disclosures or responses to discovery in this matter.
2.6 The term "Expert" shall mean 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.
2.7 The term "In-House Counsel" shall mean in-house Counsel for the Parties, including parent corporations and subsidiaries and other affiliated companies of the Parties, including their administrative staff (e.g., paralegals and secretaries) assigned to and necessary to assist Counsel in the preparation or trial of this action.
2.8 The term "Materials" shall include, but shall not be limited to: documents; correspondence; memoranda; bulletins; blueprints; specifications; minutes; letters; statements; cancelled checks; contracts; invoices; drafts; books of account; worksheets; notes of conversations; desk diaries; appointment books; expense accounts; recordings; photographs; motion pictures; compilations from which information can be obtained and translated into reasonably usable form through detection devices; sketches; drawings; notes (including laboratory notebooks and records); reports; instructions; disclosures; other writings; models and prototypes and other physical objects.
2.9 The term "Non-Party" shall mean any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action.
2.10 The term "Party" shall mean any party to this action, including all of its officers, directors, employees, consultants, retained Experts, and outside counsel of record (and their support staff).
2.11 The term "Producing Party" shall mean a Party or Non-Party that produces Disclosure or Discovery Material in this action.
2.12 The term "Professional Vendors" shall mean persons or entities that provide litigation support 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.
2.13 The term "Protected Material" shall mean any Disclosure or Discovery Material that is designated as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL -- FOR COUNSEL'S EYES ONLY."
2.14 The term "Receiving Party" shall mean a Party that receives Disclosure or Discovery Material from a Producing Party.
The protections conferred by this Order cover not only Protected Material (as defined above), but also (1) any information copied or extracted from Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any deposition testimony, conversations, or presentations by Parties or their Counsel that might reveal Protected Material. However, the protections conferred by this Order to do not cover the 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.
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 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.
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.
5.2 Mass, indiscriminate, or routinized designations are prohibited. 5.3 If it comes to a Designating Party's attention that information or items that it designated for protection do not qualify for protection, that Designating Party must promptly notify all other Parties that it is withdrawing the mistaken designation.
5.4 Manner and Timing of Designations. Each Party or Non-Party to this litigation that produces or discloses any Discovery Materials that the Producing Party believes should be subject to this Protective Order may designate the same as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL -FOR COUNSEL'S EYES ONLY."
a. Designation as "CONFIDENTIAL": Any Party or Non-Party may designate information as "CONFIDENTIAL" if, in the good faith belief of such Party and its Counsel, the unrestricted disclosure of such information could be potentially prejudicial to the business or operations of such Party and qualifies for protection under Federal Rule of Civil Procedure 26(c). In addition, documents, deposition testimony, or other Material concerning Plaintiffs' medical or mental health treatment or records may also be designated as "CONFIDENTIAL."
b. Designation as "HIGHLY CONFIDENTIAL - FOR COUNSEL'S EYES ONLY": Any Party or Non-Party may designate information as "HIGHLY CONFIDENTIAL -FOR COUNSEL'S EYES ONLY" if, in the good faith belief of such Producing Party and its Counsel, the information qualifies for protection under Federal Rule of Civil Procedure 26(c) or the Uniform Trade Secrets Act, thereby rendering said information so commercially sensitive that ...