The opinion of the court was delivered by: The Honorable Mariana R. Pfaelzer United States District Court Judge
[PROPOSED] PROTECTIVE ORDER
WHEREAS, Plaintiff CSR Technology Inc. (CSR) and Defendant Bandspeed, Inc. (BANDSPEED) (collectively, "the Parties") believe that certain information that is or will be encompassed by discovery demands by the Parties involves the production or disclosure of trade secrets, confidential business information, or other proprietary information;
WHEREAS, the Parties seek a protective order limiting disclosure thereof pursuant to Federal Rule of Civil Procedure 26(c):
THEREFORE, it is hereby stipulated among the Parties and ORDERED that:
1. Each Party may designate as confidential for protection under this Order, in whole or in part, any document, information or material that constitutes or includes, in whole or in part, confidential or proprietary information or trade secrets of the Party or a Third Party to whom the Party reasonably believes it owes an obligation of confidentiality with respect to such document, information or material ("Designated Material").*fn1 Designated Material shall be designated by the Party producing it by affixing a legend or stamp on such document, information or material as follows: "CONFIDENTIAL," "RESTRICTED - OUTSIDE ATTORNEYS' EYES ONLY," or "RESTRICTED CONFIDENTIAL SOURCE CODE." The designation shall be placed clearly on each page of the Designated Material (except deposition and hearing transcripts) for which such protection is sought. For deposition and hearing transcripts, the designation shall be placed on the cover page of the transcript (if not already present on the cover page of the transcript when received from the court reporter) by each attorney receiving a copy of the transcript after that attorney receives notice of the designation of some or all of that transcript.
2. Any document produced before issuance of this Order with the designation "Confidential" shall receive the same treatment as if designated "Confidential" under this Order, unless and until such document is redesignated to have a different classification under this Order. Any document produced before issuance of this Order with the designation "Confidential -- Outside Attorney's Only," "Confidential -- Attorneys' Eyes Only," or "Attorneys' Eyes Only" shall receive the same treatment as if designated "RESTRICTED -- OUTSIDE ATTORNEYS' EYES ONLY" under this Order unless and until such document is redesignated to have a different classification under this Order.
3. With respect to documents, information, or material designated "CONFIDENTIAL," "RESTRICTED - OUTSIDE ATTORNEYS' EYES ONLY," or "RESTRICTED CONFIDENTIAL SOURCE CODE," subject to the provisions herein and unless otherwise stated, this Order governs, without limitation: (a) all documents, electronically stored information, and/or things as defined by the Federal Rules of Civil Procedure; (b) all pretrial, hearing or deposition testimony, or documents marked as exhibits or for identification in depositions and hearings; (c) pretrial pleadings, exhibits to pleadings and other court filings; (d) affidavits and declarations; (e) stipulations; and (f) any communications or presentations by the parties or their counsel that contain, reflect, or reveal Designated Material. All copies, reproductions, extracts, digests and complete or partial summaries prepared from any DESIGNATED MATERIALS shall also be considered DESIGNATED MATERIAL and treated as such under this Order.
4. A designation of Designated Material (i.e., "CONFIDENTIAL," "RESTRICTED - OUTSIDE ATTORNEYS' EYES ONLY," or "RESTRICTED CONFIDENTIAL SOURCE CODE") may be made at any time. Inadvertent or unintentional production of documents, information, or material that has not been designated as DESIGNATED MATERIAL shall not be deemed a waiver in whole or in part of a claim for confidential treatment. Any party that inadvertently or unintentionally produces documents, information, or material without designating it as DESIGNATED MATERIAL may request destruction of that Designated Material by notifying the recipient(s), within 14 days after the producing Party becomes aware of the inadvertent or unintentional disclosure, and providing replacement Designated Material that is properly designated. The recipient(s) shall then destroy all copies of the inadvertently or unintentionally produced Designated Materials and any documents, information or material derived from or based thereon.
5. "CONFIDENTIAL" documents, information, and material may be disclosed only to the following persons, except upon receipt of the prior written consent of the designating party, upon order of the Court, or as set forth in paragraph 12 herein:
(a) outside counsel of record in this Action for the Parties;
(b) employees of such counsel assigned to and reasonably necessary to assist such counsel in the litigation of this Action;
(c) in-house counsel for the Parties who either have responsibility for making decisions dealing directly with the litigation of this Action, or who are assisting outside counsel in the litigation of this Action;
(d) one (1) Bandspeed and one (1) CSR designated representative to the extent reasonably necessary for the litigation of this Action. Before access is given to the designated representative discussed in this paragraph, the representatives (i) shall complete the agreement attached as Appendix A hereto agreeing to be bound by the terms of this protective order and identifying the person's name (Undertaking) and (ii) the receiving Party shall deliver such Undertaking to the producing Party. Bandspeed's representative shall be Ben Jones; CSR's representative shall be Chris Neal; (e) outside consultants or experts (i.e., not existing employees or affiliates of a Party or an affiliate of a Party) retained for the purpose of this litigation, provided that: (1) such consultants or experts are not presently employed by the Parties hereto for purposes other than this Action; (2) before access is given, the consultant or expert (i) has completed the Undertaking attached as Appendix B hereto agreeing to be bound by the terms of this protective order and identifying the person's name and current employer, and (ii) such Undertaking, a current curriculum vitae of the consultant or expert, and an identification of any work performed by that person for or on behalf of any party in this action since June of 2006 has been delivered as required by this paragraph 5(e). The Undertaking of outside consultants or experts to whom DESIGNATED MATERIAL is disclosed shall be maintained by outside counsel for the receiving party with copies delivered to outside counsel for the producing Party at least ten (10) days before access to the DESIGNATED MATERIAL is provided. If a producing Party objects to disclosure of DESIGNATED MATERIAL to the consultant or expert, the Parties agree to promptly confer and use good faith to resolve any such objection. If the Parties are unable to resolve any objection, the objecting Party may file a motion with the Court within ten (10) days of receipt of the Undertaking, or within such other time as the Parties may agree, seeking a protective order with respect to the proposed disclosure. The objecting Party shall have the burden of proving the need for a protective order. No disclosure shall occur until all such objections are resolved by agreement or Court order. The Undertaking of outside consultants or experts to whom DESIGNATED MATERIAL is disclosed shall be maintained by outside counsel for the receiving Party and made available to the Court upon the Court's request.
(f) independent litigation support services, including persons working for or as court reporters, graphics or design services, jury or trial consulting services, and photocopy, document imaging, and database services retained by counsel and reasonably necessary to assist counsel with the litigation of this Action; and
(g) the Court and its personnel.
6. Subject to paragraph 5(d) above, a party shall not disclose or share any DESIGNATED MATERIAL with any witness in this case or any other case, including but not limited to use in depositions, absent further order of the Court. Should any party enter into an agreement, either written or oral, to share their confidential information in any manner, they must notify the Court of the terms of the agreement within 10 days of the agreement.
7. A Party shall designate documents, information, or material as "CONFIDENTIAL" only upon a good faith belief that the documents, information, or material contains confidential or proprietary information or trade secrets of the Party or a Third Party to whom the Party reasonably believes it owes an obligation of confidentiality with respect to such documents, information or material.
8. Documents, information, or material produced pursuant to any discovery request in this Action, including but not limited to DESIGNATED MATERIAL, shall be used by the Parties only in the litigation of this Action and shall not be used for any other purpose without further order of the Court.
Any person or entity who obtains access to DESIGNATED MATERIAL or the contents thereof pursuant to this Order shall not make any copies, duplicates, extracts, summaries, or descriptions of such DESIGNATED MATERIAL or any portion thereof except as may be reasonably necessary in the litigation of this Action. Any such copies, duplicates, extracts, summaries, or descriptions shall be classified DESIGNATED MATERIALS and subject to all of the terms and conditions of this Order.
9. To the extent a producing Party believes that certain documents, information, or material qualifying to be designated CONFIDENTIAL is so sensitive that its dissemination deserves even further limitation, the producing Party may designate such documents, information, or material as "RESTRICTED -- OUTSIDE ATTORNEYS' EYES ONLY," or to the extent such documents, information, or material includes Source Code Material, the producing Party may designate such documents, information, or material as "RESTRICTED CONFIDENTIAL SOURCE CODE." Nothing shall be regarded as "CONFIDENTIAL," "RESTRICTED -- OUTSIDE ATTORNEYS' EYES ONLY," or "RESTRICTED CONFIDENTIAL SOURCE CODE" information if it is information that either:
(a) is in the public domain at the time of disclosure, as evidenced by a written document;
(b) becomes part of the public domain through no fault of the other party, as evidenced by a written document;
(c) the receiving party can show by written document that the information was in its rightful and lawful ...