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United States, the States of California, Delaware, Florida, Illinois v. J-M Manufacturing Company

October 19, 2011


The opinion of the court was delivered by: The Honorable Patrick J. Walsh United States Magistrate Judge

Assigned to Hon. George H. Wu

PROTECTIVE ORDER [Joint Stipulation Regarding Protective Order Filed Concurrently]

Pursuant to Federal Rule of Civil Procedure 26, and the stipulation of the Plaintiffs*fn1 (collectively, "Plaintiffs") and Defendants J-M Manufacturing Company, Inc., d/b/a JM Eagle ("JM Eagle") and Formosa Plastics Corporation, U.S.A. ("FPCUSA") (collectively, "Defendants") (each a "Party" and collectively, "the Parties"), the Court hereby orders the parties to abide by this Protective Order. Unless modified pursuant to the terms contained in this Order, this Order shall remain in effect through conclusion of this action and survive termination of this action.



Disclosure and discovery activity in this action are likely to involve production of confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation may be warranted.


2.1 Challenging Party: a Party that challenges the designation of information or items under this Order.

2.2 "CONFIDENTIAL" Information or Items: information whether generated, stored or maintained on paper, as electronically stored information ("ESI") or stored in or as tangible things that constitute or reveal these private company Defendants' trade secrets, proprietary research and development, specifications and formulations for materials and products, contracts and communications with vendors, contracts and communications with customers other than Plaintiffs; internal testing and quality assurance procedures, results and reports; communications with testing laboratories and standards certifying organizations, financial statements and supporting accounting records, bank statements, communications between defendants and with financial institutions regarding procedures and records for receipts, disbursements, funds management, borrowing and investments; invoices and communications with vendors or with customers other than Plaintiffs, accounting and cash management records, internal engineering communications, and personnel records of present and former employees, as well as (in the case of information produced by public entities) information concerning critical infrastructure the disclosure of which is limited by applicable law, and other information qualifying for protection under F. R. C. P. 26(c)(G).

2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as their support staff).

2.4 Designating Party: a Party or Non-Party that designates information or items contained in disclosures or in responses to discovery as "CONFIDENTIAL."

2.5 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, testimony, transcripts, and tangible things), that are produced or generated in disclosures or responses to discovery in this matter.

2.6 Expert: 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 an expert consultant in this action.

2.7 House Counsel: attorneys who are employees of a Party to this action and attorneys who are not employees of a Party but who act as regular outside counsel to a Party and who are advising that Party with respect to this action. "House Counsel" does not include Outside Counsel of Record.

2.8 Non-Party: any natural person, partnership, corporation, association, or other legal entity that is not a Party. For purposes of this Order, a Real Party is a Non-Party.

2.9 Outside Counsel of Record: attorneys who are not employees of a party to this action but are retained to represent or advise a party to this action and have appeared in this action on behalf of that party or are affiliated with a law firm that has appeared on behalf of that party.

2.10 Party (without qualifier): any Plaintiff or Defendant in this action, including the Relator, John Hendrix.

2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this action.

2.12 Professional Vendors: 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 Protected Material: any Disclosure or Discovery Material that is designated as "CONFIDENTIAL."

2.14 Real Party: a government entity that is specifically named as a real party in interest in the Relator's operative Complaint or the exhibits thereto and on whose behalf Relator is pursuing claims but that has not intervened or been permitted to intervene in this action. The Parties disagree on the timing of identification of Real Parties; nothing in this paragraph withstanding, no Parties waive, and all Parties reserve, their rights to argue or object to the timing or procedure for identification of Real Parties in the litigation for purposes other than protecting the confidentiality of documents as addressed in this Protective Order.

2.15 Receiving Party: any Party to which a Producing Party produces or serves Disclosure or Discovery Material.


The protections conferred by this Order cover not only Protected Material (as defined above) but also: (a) any information copied or extracted from Protected Material; (b) all copies, excerpts, summaries, or compilations of Protected Material; and (c) any testimony, conversations, or presentations by Parties or their Counsel that might reveal Protected Material. However, the protections conferred by this Order do not cover any information that (a) is already in the public domain at the time of disclosure; (b) becomes part of the public domain at any time, unless as a result of (i) action or failure to act where there is a duty to act on the part of the Receiving Party; or (ii) any breach of duty by any third party; (c) is already in the possession of the Receiving Party at the time of disclosure and was not acquired under (i) assurance of confidentiality directly or indirectly from the Producing or Designating Party or (ii) breach of duty by any third party; or (d) is made available to the Receiving Party by a third party who obtained the same by legal means and without any obligation of confidence to the Producing or Designating Party. Any use of Protected Material at trial shall be governed by a separate agreement or order. This Protective Order shall not apply to the production of any documents by Defendant J-M to any government entity prior to February 1, 2010; it shall apply to any production of the same documents by any Party subsequent to the entry of this Protective Order. In the event of conflict between this Order and any Protective Order previously entered in this action, the Parties agree to meet and confer in a good faith attempt to resolve such conflict before seeking resolution from the Court. For the purposes of this section, a "conflict" arises only when a Party's compliance with this Order will preclude it from complying with any Protective Order previously entered in this action.


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: (a) dismissal of all claims and defenses in this action, with or without prejudice; or (b) 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.


The provisions of this Order shall apply to all Parties in this action, including, in the case of Parties other than individuals, their officers, directors, employees, and agents, their law firms and their employees, and consultants and expert witnesses, as well as any other Producing Party or Receiving Party in this action.


6.1 Exercise of Restraint and Care in Designating Material for Protection. Except as provided below, each Party or Non-Party that designates information or items for CONFIDENTIAL protection under this Order shall take care to limit any such designation to only those portions of paper documents, ESI or tangible materials that contain or reveal CONFIDENTIAL information. The Parties agree to exercise all reasonable efforts to avoid indiscriminate, CONFIDENTIAL designations.

Prior to designating information or items for protection under this Protective Order, each Party agrees to a review of non-ESI documents, under attorney supervision, of the information proposed to be Protected Information.

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.

6.2 ESI Presumed Confidential. Notwithstanding any of the above provisions, all ESI shall be presumed CONFIDENTIAL, and each Producing Party may designate ...

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