The opinion of the court was delivered by: Hon. John E. McDermott United States Magistrate Judge
[PROPOSED] STIPULATED PROTECTIVE ORDER
[Discovery Document: referred to Magistrate Judge John E. McDermott]
Discovery Cutoff: November 15, 2011 Trial Date: April 17, 2012
The parties to the above-captioned action desire to expedite the flow of discovery materials, to facilitate the prompt resolution of disputes over confidentiality of discovery materials, to adequately protect information the parties are entitled to keep confidential, to ensure that only materials the parties are entitled to keep confidential are subject to such treatment, and to ensure that the parties are permitted reasonably necessary uses of such materials in preparation for and in the conduct of trial. Accordingly, pursuant to Fed. R. Civ. P. 26(c) and any other applicable rule of this Court, it is hereby stipulated by and between the parties through their respective counsel of record, and ORDERED THAT the following protective order ("Protective Order") be entered to give effect to the agreed-upon terms and conditions to protect confidential information during discovery and trial. Unless modified, superseded or terminated pursuant to the terms contained in this Order, this Protective Order shall remain in effect through the conclusion of this litigation and thereafter as set forth below.
The parties believe that good cause exists for the entry of this Protective Order because they are competitors in the marketplace and because, in addition to materials designated "Confidential Material," materials designated as "Confidential -- Outside Counsel Only" or "Highly Restricted Confidential" (Computer Source Code) constitute trade secret or other confidential information the disclosure of which is likely to have the effect of harming the competitive position of the Designating Party or violating an obligation of confidentiality to a third party.
In support of this Protective Order, THE COURT FINDS THAT:
I. Documents and/or information containing confidential research, development, business and/or commercial information and/or trade secrets within the meaning of Rule 26(c) ("Confidential Information") are likely to be disclosed or produced during the course of discovery in this litigation;
II. The parties to this litigation, Plaintiff Spark Networks USA, LLC ("Plaintiff") and Defendant Zoosk, Inc. ("Defendant"), may assert that public dissemination and disclosure of Confidential Information could severely injure or damage the party disclosing or producing the Confidential Information and/or could place that party at a competitive disadvantage;
III. Counsel for the party or parties receiving Confidential Information are presently without sufficient information to accept the representation(s) made by the party or parties producing Confidential Information as to the confidential, proprietary, and/or trade secret nature of such Confidential Information; and
IV. To protect the respective interests of the parties and to facilitate the progress of disclosure and discovery in this case, the following Protective Order should be entered.
IT IS THEREFORE ORDERED THAT:
1. This Protective Order shall apply to all information, documents and things subject to discovery in this Action produced either by a party or a non-party in discovery in this Action ("Action" shall include without limitation this litigation and any adjunct subpoena proceedings incident hereto before any tribunal) including, without limitation, testimony adduced at deposition upon oral examination or upon written questions, answers to interrogatories, documents and things produced, information obtained from inspection of premises or things, and answers to requests for admission, or information disclosed pursuant to subpoena under Fed. R. Civ. P. 45 ("Discovery Material"). This Protective Order shall apply to non-parties, who shall be treated for purposes of this Protective Order as parties.
2. Discovery Material containing Confidential Information is referred to as "Confidential Material." The following is not Confidential Material: (i) material which, on its face, shows or which, through other evidence, the receiving party can show has been published to the general public; (ii) information that the receiving party can show was lawfully in the receiving party's possession prior to being designated as Confidential Material in this litigation and that the receiving party is not otherwise obligated to treat as confidential; (iii) information that the receiving party can show was obtained (without any benefit or use of Confidential Material) from a third party having the right to disclose such information to the receiving party without restriction or obligation of confidentiality; (iv) information which, after its disclosure to a receiving party, is published to the general public by a party having the right to publish such information; (v) information that the receiving party can show by written record was independently developed by it after the time of disclosure by personnel who did not have access to the producing party's Confidential Material, or (vi) information that was submitted to a governmental entity without request for confidential treatment.
3. In determining the scope of information which a party may designate as its Confidential Material, each party acknowledges the importance of client access to information necessary to client decision-making in the prosecution or defense of litigation, and therefore agrees that designations of information as Confidential Material and responses to requests to permit further disclosure of Confidential Material shall be made in good faith and not (1) to impose burden or delay on an opposing party or (2) for tactical or other advantage in litigation.
4. The producing party shall label or mark each document and thing that it deems to be Confidential Materials with the following term:
5. The parties may designate as CONFIDENTIAL -- OUTSIDE COUNSEL ONLY those Confidential Materials that contain Confidential Information that is especially sensitive and could cause significant competitive harm if disclosed to an unauthorized person, including, without limitation, pending but unpublished patent applications, information concerning research, development and other activities related to unreleased products, license agreements and other highly confidential technical, research and development, business strategy, and financial information. These designations shall be made in good faith. The parties shall label or mark each such document or thing with the following term:
"CONFIDENTIAL -- OUTSIDE COUNSEL ONLY"
6. The parties may designate as HIGHLY RESTRICTED CONFIDENTIAL those Confidential Materials that contain Computer Source Code. As used herein, the term "Computer Source Code" means computer source code or similarly highly confidential programming statements and/or instructions that in general are converted into machine language -- or used in support of converting source code into machine language -- by compilers, assemblers, or interpreters, and source code comments revision histories, and data that are held by a party within its source code control system. These designations shall be made in good faith. Design documents, product and program specifications, and similar documents such as flow charts and functional diagrams, generally are not "Computer Source Code," shall not be designated as HIGHLY RESTRICTED CONFIDENTIAL, and shall be treated and produced consistent with documents designated at levels of confidentiality lower than the HIGHLY RESTRICTED CONFIDENTIAL designation. The parties acknowledge that because of the highly sensitive nature of Computer Source Code and because of the ease with which electronic media may be copied, transported, or stolen, a distinct level of protection is required for Computer Source Code as to which CONFIDENTIAL -- OUTSIDE COUNSEL ONLY designation would not provide adequate protection to the interests of the designating party and whose wrongful dissemination could result in irreparable harm to the designating party. The parties shall label or mark each such document or thing with the following term:
"HIGHLY RESTRICTED CONFIDENTIAL"
7. The labeling or marking of a document or tangible thing with the designation CONFIDENTIAL, CONFIDENTIAL -- OUTSIDE COUNSEL ONLY, or HIGHLY RESTRICTED CONFIDENTIAL shall be made when a copy of the document or thing is provided to the receiving party by placing the legend "CONFIDENTIAL," "CONFIDENTIAL -- OUTSIDE COUNSEL ONLY," or "HIGHLY RESTRICTED CONFIDENTIAL," on the face of each such document or thing. Any such designation that is inadvertently omitted or misdesignated may be corrected by written notification to counsel for the receiving party, and the receiving party shall thereafter mark and treat the materials as CONFIDENTIAL, CONFIDENTIAL -- OUTSIDE COUNSEL ONLY, or HIGHLY RESTRICTED CONFIDENTIAL, as appropriate, and such material shall be subject to this Protective Order as if it had been initially so designated. If, prior to receiving such notice, the receiving party has disseminated the Confidential Material to individuals not authorized to receive it hereunder, it shall make a reasonable effort to retrieve the Confidential Material or to otherwise assure that the recipient(s) properly mark the Confidential Material and maintain the confidentiality of the Confidential Material, but shall have no other responsibility or obligation with respect to the information disseminated.
8. In the case of deposition upon oral examination or written questions, such testimony shall be deemed CONFIDENTIAL -- OUTSIDE COUNSEL ONLY until the expiration of thirty (30) days after receipt by the designating party of the final deposition transcript unless otherwise designated at the time of the deposition or during the thirty (30) day period. Pages or entire transcripts of testimony given at a deposition or hearing may be designated as containing CONFIDENTIAL, CONFIDENTIAL -- OUTSIDE COUNSEL ONLY, or HIGHLY RESTRICTED CONFIDENTIAL information by an appropriate statement either at the time of the giving of such testimony or by written notification within thirty (30) days after receipt by the designating party of the final the final deposition. If the testimony is not otherwise designated at the time of the deposition or during the thirty (30) day period after receipt by the designating party of the final deposition transcript, the testimony will be deemed to not be Confidential Material.
9. In the case of written discovery responses and the information contained therein, the responses may be designated as containing CONFIDENTIAL, CONFIDENTIAL -- OUTSIDE COUNSEL ONLY, or HIGHLY RESTRICTED CONFIDENTIAL information by means of a statement prominently associated with each response that contains such information specifying the level of designation of the Confidential Information and by placing a legend on the front page of such discovery responses stating: "CONTAINS [the highest level of designation contained in the answers]." Any such designation that is inadvertently omitted or misdesignated may be corrected within thirty (30) days of service of such discovery responses by written notification to counsel for the receiving party, and the receiving party shall thereafter mark and treat the materials as CONFIDENTIAL, CONFIDENTIAL -- OUTSIDE COUNSEL ONLY, or HIGHLY RESTRICTED CONFIDENTIAL, as appropriate, and such material shall be subject to this Protective Order as if it had been initially so designated. If, prior to receiving such notice, the receiving party has disseminated the Confidential Material to individuals not authorized to receive it ...