The opinion of the court was delivered by: Honorable Carla Woehrle U.S. Magistrate Judge
AND RELATED COUNTERCLAIMS.
STIPULATED [AND PROPOSED]
[Lodged Concurrently with Stipulated Protective Order]
WHEREAS Plaintiff and counter-defendant BDO Remit, Inc. ("BDO Remit") and Defendant and counterclaimant Stichting BDO ("Stichting BDO") (collectively, the "Parties") are parties to the above-referenced Case No. CV11-04054 MMM (CWx) ("the Action");
WHEREAS discovery in the Action may involve the disclosure of certain documents, things and information in the possession, custody or control of BDO Remit, Stichting BDO, or non-parties, which constitute or contain trade secrets or other confidential proprietary or commercial information;
WHEREAS such confidential information must be protected in order to preserve the legitimate business interests of the Parties or non-parties;
WHEREAS the Parties have, through counsel, stipulated to the entry of this Protective Order for the purpose of advancing the progress of the Action and to prevent unnecessary dissemination or disclosure of such confidential information; and
WHEREAS the Parties have established good cause for entry of this Protective Order;
THEREFORE, for good cause shown, pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, all discovery and other materials exchanged by the Parties or non-parties, or filed with the Court, in the Action shall be provided subject to the following conditions:
1. Scope. This Protective Order shall apply to all documents and portions thereof, things, or any other form of evidence or information subject to discovery or that can be protected under Fed. R. Civ. P. 26(c) in the Action that are owned, possessed, or controlled by a Party or a non-party, provided that such non-parties receive and agree to be bound by the terms of this Order ("Producing Party"), and that contain the Producing Party's trade secrets or other confidential proprietary or commercial information and all information derived therefrom ("Protected Material"), including, without limitation, documents, things, deposition testimony, interrogatory answers, answers to requests for admissions, and other discovery materials that are provided to or received by another party or non-party in the Action ("Receiving Party"), whether produced informally or in response to formal methods of discovery.
2. Designations and Duties. It shall be the duty of the Producing Party to give notice of the Protected Material designated to be covered by this Protective Order in the manner set forth in Paragraph 5 below. The duty of the Receiving Party or parties and of all other persons bound by this Protective Order to maintain the confidentiality of Protected Material so designated shall commence with such notice. Subject to the provisions of this Order, Protected Material shall be designated by the Producing Party with the designation "CONFIDENTIAL" or "CONFIDENTIAL-OUTSIDE ATTORNEYS' EYES ONLY".
(a) Definition of "CONFIDENTIAL." Protected Material may be designated "CONFIDENTIAL" if the Producing Party believes in objective good faith that such material constitutes or discloses or relates to processes, operations, research, technical or developmental information, production, marketing, sales, or other proprietary data or information of commercial value, or personnel or customer or otherwise personal private data that is protected from public disclosure by a person's right to privacy.
(b) Definition of "CONFIDENTIAL-OUTSIDE ATTORNEYS' EYES ONLY." Protected Material may be designated "CONFIDENTIAL-OUTSIDE ATTORNEYS' EYES ONLY" if the Producing Party believes in objective good faith that such material meets the standard for designation of "CONFIDENTIAL," and in addition, constitutes or discloses or relates to (a) materials constituting, disclosing, or relating to future product or service offerings, including future business plans, future advertising or marketing plans or designs, and technical data; (b) materials constituting, disclosing, or relating to the Producing Party's current product or service offerings that the Producing Party reasonably believes will harm its competitive position if the information becomes known to a party other than the Receiving Party's outside counsel, including licensing agreements, franchising agreements, and/or confidential internal business guidelines or procedures; or (c) materials constituting, disclosing, or relating to sensitive financial information, including sales and net profit information or the identification of customers or potential customers, the disclosure of which the Producing Party reasonably, believes will harm its competitive position if the information becomes known to a party other than the Receiving Party's outside counsel, including material relating to revenues, profits, and losses.
3. Method of Designation. Each page of any material the Producing Party wishes to designate as Protected Material must be labeled with the legend "CONFIDENTIAL" or "CONFIDENTIAL-OUTSIDE ATTORNEYS' EYES ONLY" at the time the material, or a copy thereof, is provided to the Receiving Party, or at any time thereafter. In the case of material contained in or on media other than paper (e.g., natively produced documents), the Producing Party shall affix such a label to the material or file name, or use its best efforts to identify the material as Protected Material. With respect to material produced by another Party, a Designating Party may give notice to all other Parties in the Action, in writing, that the material is Protected Material covered by this Protective Order.
4. Inadvertent Disclosure of Protected Material. The failure by a Producing Party to designate specific documents or materials as Protected Material shall not, by itself, be deemed a waiver in whole or in part of a claim of confidentiality as to such documents or materials. Upon written notice to the Receiving Party of such failure to designate, or of incorrect designation, the Receiving Party shall cooperate to retrieve disseminated copies, and restore the confidentiality of the information that was inadvertently disclosed beyond those persons authorized to review such information pursuant to Paragraphs 11-13, and shall thereafter take reasonable steps to ensure that the Protected Material is treated in accordance with the designation. No person or party shall incur any liability hereunder with respect to disclosure that occurred prior to the receipt of written notice of the mistaken designation.
5. Designation Of "Confidential" Or "Highly Confidential -- Attorneys' Eyes Only" Information At Depositions. All testimony provided in a deposition and deposition exhibits will be treated as CONFIDENTIAL-OUTSIDE ATTORNEYS' EYES ONLY for fourteen (14) days from the day the Producing Party received the final deposition transcript from the court reporter. At the expiration of the fourteen (14) day period, the transcript and exhibits will no longer be treated as Protected Material unless: (1) at the deposition, counsel for the Producing Party identifies on the record certain portions of the deposition transcript and/or exhibits that contain Protected Material or (2) counsel for the Producing Party provides written notice to counsel for the Receiving Party identifying the portions of the transcript and/or exhibits that contain Protected Material. All counsel receiving such notice shall be responsible for marking the copies of the designated transcript in their possession or under their control as directed by the Producing Party. Deposition exhibits previously designated as containing Protected Material do not need to be re-designated to retain their protection under this Protective Order. Notwithstanding the above, counsel for a Party may make a request at any time prior to the expiration of the fourteen (14) day period for permission to treat certain portions of the transcript as not containing Protected Material and that request shall not be unreasonably denied in cases where it is apparent that the designated portions do not contain material that warrants confidential treatment pursuant to the terms of this Order.
a. At any deposition session, when counsel for a Producing Party deems that the answer to a question will result in the disclosure of Protected Material, counsel shall have the option, in lieu of or in addition to taking other steps available under the Federal Rules of Civil Procedure, to direct that the testimony shall be treated in accordance with a designation under Paragraph 2 of this Protective Order. Counsel for the Producing Party whose Protected Material is involved may also request that all persons other than the witness and individuals who may have access to such Protected Material under the appropriate designation in Paragraph 2 of this Order, leave the deposition room during the confidential portion of the deposition. The failure of such other persons to comply with a request of this type shall constitute substantial justification for counsel for the Producing Party to advise the witness that the witness need not answer the question.
b. Deposition transcripts containing Protected Material shall be prominently marked on the front page with a statement that provides "THIS DEPOSITION TRANSCRIPT CONTAINS CONFIDENTIAL INFORMATION THAT IS SUBJECT TO A PROTECTIVE ORDER." Deponents may review their own transcript designated pursuant to Paragraph 2 of this Order to ensure that it is accurate and complete, but no deponent (other than individuals who may have access to the same material under this Order) may retain or copy any portion of the transcript of the deposition that contains the designated material without permission of the Producing Party.
6. Court Reporter at Deposition. Provided that they receive and agree to bound by this Protective Order, any court reporters who transcribe testimony in this action at a deposition shall treat all Protected Material as confidential and will not disclose Protected Materials except as provided under this Order.
7. Copies, Summarizations, Extracts Protected. Protected Material designated under Paragraph 2 of this Protective Order shall include, without limitation: (a) all copies, extracts, and complete or partial summaries prepared from such documents, things, or information so designated; (b) portions of deposition transcripts and exhibits thereto that contain, summarize, or reflect the content of any such documents, things, or information; (c) portions of briefs, memoranda, or any other writings filed with the Court and exhibits thereto that contain, summarize, or reflect the content of any such documents, things, or information; and (d) deposition testimony designated in accordance with Paragraph 7 above. To the extent feasible, interrogatory answers and responses to requests for admission shall be prepared in such a manner that the confidential information is bound separately from that not entitled to protection.
8. Each Party and all other persons bound by the terms of this Protective Order shall use any material designated as Protected Material by a Producing Party other than itself only for the purpose of this Action (including any appeal), and not for any other purpose.
9. Permissible Disclosures of CONFIDENTIAL Protected Material. Only the following persons shall have access to or retain material designated as "CONFIDENTIAL" pursuant ...