The opinion of the court was delivered by: Hon. Paul L. Abrams United States Magistrate Judge
NOTE: CHANGES MADE BY THE COURT
ORDER GOVERNING USE AND DISSEMINATION OF CONFIDENTIAL INFORMATION [DISCOVERY MATTER]
Pursuant to the Stipulation Governing Use and Dissemination of Confidential Information concurrently filed by Plaintiffs / Counterclaim Defendants Wah Hung International Machinery, Inc. d/b/a Velocity Wheel, Tyfun International, Inc., and John Zhao (collectively, "Plaintiffs") and Defendants / Counterclaimants Valley Custom Tire, Inc. d/b/a VCT Wheels, Texas Tire and Wheel LLC, and Wholesale Wheel & Tire LLC (collectively, "Defendants"), the Court hereby enters this Protective Order ("the Order") to protect confidential information and material that may be produced or otherwise disclosed by the parties or third parties during the course of discovery in this action.
IT IS HEREBY ORDERED THAT:
The following Protective Order ("ORDER") shall govern the handling of confidential, proprietary and trade secret information produced in discovery and/or filed with the Court in this action.
1. Consistent with Federal Rule of Civil Procedure 26(c), good cause exists for this Court to enter a Protective Order due to the highly sensitive and proprietary nature of the information to be exchanged through discovery and trial of this action. The information expected to be sought and produced will likely include "trade secrets," as that term is defined in California Civil Code § 3426.1(d). "Trade secrets" may include, but are not limited, to customer lists, pricing analysis and information, market surveys and competitive research, corporate financial information and analysis, business strategies, and information related to product development, research and releases. In addition to the parties' trade secrets, additional information commonly sought and produced in discovery, including, without limitation, draft patent applications, invention disclosures, other patent related information, draft marketing materials, personal financial information, and personal identifier information, should also be kept confidential due to the sensitive nature of such information.
2. The parties agree that the disclosure to the public of such highly sensitive information may cause competitive injury and damages to the parties' and/or would unnecessarily invade the privacy of a party or person. Therefore, the parties have agreed to this Stipulation for Entry of Protective Order on the terms set forth below.
3. This Protective Order shall govern any document, information or
other thing, which is designated as containing "CONFIDENTIAL" or
"HIGHLY CONFIDENTIAL" information, as defined herein*fn1
and is furnished by any party or non-party in connection with
the above-captioned action ("ACTION"). Documents and other information
produced in this ACTION and designated "CONFIDENTIAL" or "HIGHLY
CONFIDENTIAL" shall be used only for purposes of this ACTION. The
forms of information which may be subject to this Protective Order
include, but are not limited to, documents and things, responses to
requests to produce documents or other things, responses to
interrogatories, responses to requests for admissions, documents
subpoenaed in connection with depositions, deposition testimony and
exhibits, deposition transcripts, and all copies, extracts, summaries,
compilations, designations and portions thereof (hereinafter referred
to collectively as "DISCOVERY MATERIALS").
4. All DISCOVERY MATERIALS produced in discovery in this case and designated "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL" shall be used solely for the purpose of pre-trial proceedings (including, but not limited to, motions and briefing), trial preparation and trial, and any appeals in the ACTION. DISCOVERY MATERIALS shall not be used for any business or non-litigation related purpose whatsoever.
5. The following definitions apply in this Protective Order:
(A) The designation "CONFIDENTIAL" may be applied by any party or third party for any DISCOVERY MATERIALS pursuant to this ACTION that contain material including, but not limited to: (a) information pertaining to a third party which the party has an express or implied obligation to keep confidential; (b) marketing and promotional materials; (c) personnel information; and (d) all communications pertaining to the above named information including both manual and electronic correspondence.
(B) Designation of DISCOVERY MATERIALS made by a party to this ACTION shall be a certification to the Court and to the other parties that such information is believed to be Confidential within the meaning of this Protective Order. Information designated as "CONFIDENTIAL" in accordance with this provision shall be treated as Confidential Information pursuant to the terms hereof until it ceases to be covered by this Protective Order.
(C) The designation "HIGHLY CONFIDENTIAL" or "CONFIDENTIAL -- ATTORNEYS' EYES ONLY," may be applied by a party to highly sensitive forms of information, including, but not limited to: (a) past or current financial information of a party; (b) trade secrets as defined in Cal. Civ. Code § 3426.1(d) (which provides that the term "trade secret" "means information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (1) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and
(2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy"), including those categories of documents outlined in the parties' Statement of Good Cause above; and (c) draft patent applications, invention disclosures, and other information relating to the filing and preparation of patent applications; and/or (d) Extremely sensitive "CONFIDENTIAL" information or items whose disclosure to another Party or non-party would create a substantial risk of serious injury that could not be avoided by less restrictive means. This designation shall be a certification to the Court and the other parties that such information is believed subject to this more restrictive classification within the meaning of this Protective Order.
(D) "CONFIDENTIAL INFORMATION" refers to all information which is subject to the designations "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL" as described above.
(E) "PARTY" means every party to this ACTION and every director, officer, employee, and managing agent of every party to this ACTION.
(F) "ORDER" means this Protective Order.
(G) The scope of this Protective Order shall be understood and interpreted to encompass not only those items or things which encompass CONFIDENTIAL INFORMATION, but also any information derived therefrom, and all copies, excerpts, and summaries thereof, as well as testimony and oral conversation derived therefrom or related thereto.
(H) "PRODUCING PARTY" means a PARTY or non-party that produces Disclosure or DISCOVERY MATERIAL in this action.
(I) "RECEIVING PARTY" means a PARTY that receives Disclosure or DISCOVERY MATERIAL from a PRODUCING PARTY.
(J) "DESIGNATING PARTY" means a PARTY or non-party that designates information or items produced in disclosures or in responses to discovery as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL"
IV.TERMS OF THE PROTECTIVE ORDER
6. The designation of CONFIDENTIAL INFORMATION shall be made in the following manner:
(A) For documents, as set out in Section H of this Protective Order;
(B) For tangible objects, by placing a label or tag on the object or the container therefor, or, if not practicable, as otherwise agreed;
(C) For written responses to interrogatories or requests for admissions, in writing, in the relevant responses or on the face of any such responses;
(D) For declarations or pleadings, in writing in the declaration or pleading or on the face of any ...