The opinion of the court was delivered by: Hon. Carla Woehrle United States District Court
Complaint Filed: February 24, 2011
Proposed Bilateral Protective Order (post Dec 13 hearing).doc
AND RELATED CLAIMS PROTECTIVE ORDER
I.PURPOSES AND LIMITATIONS
A. Kerr Corporation, Danaher Corporation and Sybron Dental Specialties Inc. (collectively "Kerr") and North American Dental Wholesalers, Inc. and North American Dental, Inc. (collectively, "NAD") mutually agree that discovery served upon each of them and upon third parties requests the 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 would be warranted. Accordingly, the parties jointly have moved the Court to enter the following Protective Order ("Order").
A. Litigation Material: all information, regardless of the medium or manner generated, stored, or maintained (including, testimony, transcripts, interrogatory responses, admissions, expert disclosures, initial disclosures, documents and tangible things) produced or generated in disclosures or responses to discovery in this matter.
B. Producing Party: Kerr, NAD or any third-party that produces Litigation Material in this action.
C. Receiving Party: a party that receives Litigation Material from a Producing Party.
D. "Confidential" Litigation Material: Litigation Material that a party believes in good faith constitutes matter used by it in or pertaining to its business that is not generally known and that the party would not normally reveal to third parties or would cause third parties to maintain in confidence. Such information may include, but shall not be limited to, technical information such as product formulations and analysis; research and development information; customer lists; sales, cost, pricing, and marketing information (whether actual or projected); information that a party has treated as confidential and not subject to public disclosure; information qualifying as a trade secret; and any other information that would qualify for protection under Fed. R. Civ. P. 26(c) or any other applicable legal standard.
E. "Confidential -- Attorneys' Eyes Only" Litigation Material: extremely sensitive Confidential Litigation Material, disclosure of which the Producing Party believes in good faith would create a substantial risk of serious injury, if disclosed to a Receiving Party in this action without limitation, that could not be avoided by less restrictive means.
F. Designating Party: a Producing Party, Kerr (if the Producing Party is not Kerr) or NAD (if the Producing Party is not NAD), that designates Litigation Material as "Confidential" or "Confidential -- Attorneys' Eyes Only." The Designating Party shall bear the ultimate burden of proving that any documents or information it has designated "Confidential" or "Confidential -- Attorneys' Eyes Only."
G. Protected Material: any Litigation Material that is designated as "Confidential" or as "Confidential -- Attorneys' Eyes Only," and also any information that is copied or extracted from Protected Material, as well as all copies, excerpts, summaries, or compilations thereof, plus testimony, conversations, or presentations by Parties or counsel to or in depositions, court, or other settings that might reveal Protected Material.
H. Counsel: attorneys who are retained to represent a party to this action and who have entered appearances in this action, and are not regularly employed by that party.
I. 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 a consultant in this action. This definition includes a professional jury or trial consultant retained in connection with this litigation, and shall include consultants who have not been designated as testifying experts and whose identity is privileged or has not been revealed.
J. Professional Vendors: persons or entities that are not a part of, or employees of, a party and provide litigation support services (e.g., photocopying; videotaping; translating or interpreting; preparing exhibits or demonstrations; organizing, storing, destroying, retrieving data in any form or medium, etc.) and their employees and subcontractors.
III.DESIGNATING PROTECTED MATERIAL
A. Exercise of Restraint and Care in Designating Material for Protection. Each Designating Party under this Order must take care to limit any such designation to Litigation Material that qualifies under the appropriate standards. Mass or indiscriminate designations are prohibited. If it comes to a Designating Party's attention that Litigation Material designated for protection does not qualify for protection at all, or does not qualify for the level of protection initially asserted, that Designating Party must promptly notify all other parties that it is withdrawing the mistaken designation.
B. Manner and Timing of Designations. Except as otherwise provided in this Order, or as otherwise stipulated or ordered, Litigation Material that qualifies for protection under this Order must be clearly so designated before the material is disclosed or produced. Designation in conformity with this Order requires:
1. For Litigation Material in documentary form, designation in conformity with this Order requires (apart from transcripts of depositions or transcripts of other pretrial or trial proceedings), that the Designating Party affix a suitable notice such as, for example, the legend "CONFIDENTIAL" or "CONFIDENTIAL -- ATTORNEYS' EYES ONLY," at the ...