The opinion of the court was delivered by: Honorable Robert N. Block United States Magistrate Judge.
Gary A. Wolensky (#154041) firstname.lastname@example.org Elizabeth V. McNulty (#192455) email@example.com Cyrus D. Wilkes (#259625) firstname.lastname@example.org HEWITT WOLENSKY LLP 4041 MacArthur Blvd., Suite 300 Newport Beach, CA 92660 Telephone: (949) 783-5050 Facsimile: (949) 783-5059 Richard A. Mueller (Pro Hac Vice) email@example.com Carl J. Pesce (Pro Hac Vice) firstname.lastname@example.org Thompson Coburn LLP One US Bank Plaza St. Louis, MO 63101 Telephone: (314) 552-6000 Facsimile: (314) 552-7000 Attorneys for Defendant Kawasaki Motors Corp., USA
ORDER RE AGREED PROTECTIVE ORDER BETWEEN PLAINTIFF AND KAWASAKI MOTORS CORP., USA CTRM: 6D MAGISTRATE: Hon. Robert N. Block JUDGE: Hon. James V. Selna
DATE OF FILING July 14, 2010 DISCOVERY CUT-OFF: October 30, 2011 PRE-TRIAL DATE: February 13, 2012 TRIAL DATE: March 6, 2012
This day come the parties, by agreement of all counsel, and represent the following:
WHEREAS, the parties hereto anticipate certain discovery requests seeking information which one or more of the parties consider to be proprietary, Confidential business records and/or trade secrets;
WHEREAS, the parties have expressed a willingness to provide proprietary information, Confidential business records and/or trade secrets which would be produced in compliance with discovery requests, provided that the Court enters an appropriate Protective Order; and
IT IS, THEREFORE, HEREBY ORDERED AND ADJUDGED that all "Confidential" documents, as addressed further herein, and corresponding information produced by a party in this matter in response to any other party's requests for production of documents, interrogatories, request for admissions, deposition testimony or other requests for discovery in this case shall be subject to the terms of this Protective Order as set forth herein:
1. Protected Materials. A party producing documents shall, in good faith, mark such materials or documents as it believes are entitled to protection, as "Confidential." The documents, things, and information contained therein shall only be used, shown, and disclosed as provided in this Order. If such Confidential documents or information are produced in non-paper form or format, the designation of "Confidential" shall be marked on the media (diskette, CD, etc.) in which such documents or information are produced. To the extent that any medium shall have a "Confidential" designation upon it, the party receiving such medium shall similarly mark as "Confidential" any document or documents printed from such medium.
2. "Confidential Information" Defined: For purposes of this Order, the term "Confidential Information" is defined to include such protectable information as may be contained in blueprints, manuals, test reports, test standards, drawings, correspondence, studies, marketing information, Engineering Change Orders, specifications, graphs, charts, financial data, or any other Confidential documents (and any deposition or other transcripts that include or reflect that information), that are produced by a party which has made a good faith determination regarding Confidentiality. Publicly available information is excluded from the scope of this order but, if the Plaintiff claims that anything marked by the Defendants as "Confidential" is "publicly available," he shall first give notice to Defendants of that claim. The Producing Party bears the burden of proof at any hearing to determine whether the information has become "public."
3. Failure to Mark Document as "Confidential." The failure to mark a document or documents as "Confidential" prior to production shall not be construed or interpreted as a waiver of protections provided under this Order. Upon discovery that the party has produced documents or other information containing "Confidential" information, the producing party shall provide written notice to counsel of record of its intention to mark such document or documents as "Confidential" and from the date of receipt of such notice, such materials and information shall be treated as "Confidential."
4. Information is to be protected. Each party shall act in such a manner as to guard and protect the Confidential information and will endeavor to keep the number of copies made of such documents to a minimum.
5. Access to Confidential Documents and Information is limited to Qualified Persons. The parties are prohibited from showing or disclosing "Confidential" documents, the information contained therein, the contents or summaries thereof, or the existence thereof, to anyone other than as necessary to prosecute this specific litigation and only to: (a) Persons in the office of counsel, or co-counsel, of record for the parties; (b) Judicial Personnel. The Court, Court personnel and Court reporters in connection with this action; (c) Party or Designated Representatives who are employees or officers of any named party to the litigation, provided that each such Party or designated representative executes, before receiving the disclosure, a copy of the Nondisclosure Agreement Concerning Information Covered by Protective Order ("Non Disclosure Agreement") attached to this Protective Order as Exhibit A; and (d) Experts and consultants that have been actually retained in this litigation but only after they have signed the appropriate Nondisclosure Agreement acknowledging the existence of this Order and agreement to be bound thereby. The Nondisclosure Agreement will be retained by counsel for the party for whom it is executed. To the extent that experts or consultants are provided documents or information covered by this Order, they agree to execute the Nondisclosure Agreement attached hereto, including an oath that (a) they will only use the documents and information for the purposes of preparing or rendering expert advice or opinions to counsel of record in and for this case, (b) they submit themselves to the jurisdiction of this Court for any rulings regarding sanctions, contempt or other remedies necessitated by a violation of this order, ( c) they have read and understand the meaning and significance of the Protective Order, and (d) at the conclusion of the litigation they will return to Counsel that retained them the Protected Documents as well as any other documents that contain protected information. Those documents will immediately be returned to the producing party's counsel as outlined below.
Each person appropriately designated pursuant to this paragraph to receive Confidential information (with the exception of the Court and Court personnel), shall execute an Nondisclosure Agreement, in the form attached as Exhibit A. Opposing counsel shall be notified at least 10 days prior to disclosure to any such person who is known to be an current employee or agent of, or consultant to, any competitor of the party whose designated documents are sought to be disclosed. For purposes of this Order, the term "competitor" shall be defined as any company, person or entity with a competitive interest that is adverse to Kawasaki (or the party producing the documents) or adverse to any company selling Kawasaki branded or trade-marked goods, or other companies selling products (or after-market products) into such industries, including without limitation, any person (agent, lawyer, employee, dealer or contractor) to or from: Honda, Suzuki, BMW, Ducati, Yamaha, Harley Davidson, Polaris, Arctic, BRP, Bombardier, Triumph, Norton, Indian, BSA, Royal Enfield, Moto Guzzi, Aprilla, Victory. To the extent the Producing Party becomes aware of other competitors who make motorcycles, whose identities may not presently be known, the Producing Party will make these entities known to Plaintiff immediately and those entities will become part of this Order. Such notice shall provide a reasonable description of the outside independent person to whom disclosure is sought sufficient to permit objection to be made. If a party objects in writing to such disclosure within ten (10) days after receipt of notice, no disclosure shall be made until the party seeking disclosure obtains the prior approval of the Court or the objecting party.
6. Challenges to Claims of Confidentiality. If any party claims that documents, or information contained therein, are not "Confidential" or otherwise entitled to protection under this Order, that party shall give notice of that claim to the party claiming such "Confidentiality." The parties shall then attempt to resolve such dispute in good faith on an informal basis, and pursuant to Local Rules 37-1 and 37-2, including the requirement that the parties file a Joint Stipulation concerning the matters in dispute. If the parties are unable to resolve their dispute informally, then the person challenging the designation (the "Challenging Party") may request appropriate relief from the Court. It shall be the burden of the Designating Party to establish that the contested Protected Material is confidential. All such documents and information shall remain protected under this Order until they are released from that protection by an order of this Court.
7. Time for Contesting Confidentiality. Any documents or information covered by this Order shall, at the conclusion of the litigation, if not previously contested and removed from the protections of this Order, remain protected and any party or other person on their behalf is precluded from later challenging the Confidentiality of those documents or information.
8. This Order Remains in Effect. All provisions of this Protective Order shall remain in effect after the conclusion of the litigation and all persons shown any materials covered by this Order shall be bound by the Order, unless otherwise ...