The opinion of the court was delivered by: Margaret A. Nagle United States Magistrate Judge
PROTECTIVE ORDER ENTERED PURSUANT TO THE PARTIES' STIPULATION
Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and based on the parties' [Proposed] Stipulated Protective Order ("Stipulation") filed on May 9, 2012, the terms of the protective order to which the parties have agreed are adopted as a protective order of this Court (which generally shall govern the pretrial phase of this action) except to the extent, as set forth below, that those terms have been substantively modified by the Court.
The parties are expressly cautioned that the designation of any information, document, or thing as "CONFIDENTIAL," "ATTORNEYS' EYES ONLY," "HIGHLY CONFIDENTIAL -- SOURCE CODE," or other designation(s) used by the parties, does not, in and of itself, create any entitlement to file such information, document, or thing, in whole or in part, under seal. Accordingly, reference to this Protective Order or to the parties' designation of any information, document, or thing as "CONFIDENTIAL," "ATTORNEYS' EYES ONLY," "HIGHLY CONFIDENTIAL -- SOURCE CODE," or other designation(s) used by the parties, is wholly insufficient to warrant a filing under seal.
There is a strong presumption that the public has a right of access to judicial proceedings and records in civil cases. In connection with non-dispositive motions, good cause must be shown to support a filing under seal. The Court has stricken their good cause statement, because a specific showing of good cause or compelling reasons (see below) for filing under seal, with proper evidentiary support and legal justification , must be made with respect to each document or item designated as "CONFIDENTIAL," "ATTORNEYS' EYES ONLY," "HIGHLY CONFIDENTIAL -- SOURCE CODE," or other designation(s) used by the parties, which a party seeks to have filed under seal. The parties' mere designation of any information, document, or thing as "CONFIDENTIAL," "ATTORNEYS' EYES ONLY," "HIGHLY CONFIDENTIAL -- SOURCE CODE," or other designation(s) used by parties, does not -- without the submission of competent evidence, in the form of a declaration or declarations, establishing that the material sought to be filed under seal qualifies as confidential, privileged, or otherwise protectable -- constitute good cause.
Further, if sealing is requested in connection with a dispositive motion or trial, then compelling reasons, as opposed to good cause, for the sealing must be shown, and the relief sought shall be narrowly tailored to serve the specific interest to be protected. See Pintos v. Pacific Creditors Ass'n, 605 F.3d 665, 677-79 (9th Cir. 2010). For each item or type of information, document, or thing sought to be filed or introduced under seal in connection with a dispositive motion or trial, the party seeking protection must articulate compelling reasons, supported by specific facts and legal justification, for the requested sealing order. Again, competent evidence supporting the application to file documents under seal must be provided by declaration.
Any document that is not confidential, privileged, or otherwise protectable in its entirety will not be filed under seal if the confidential portions can be redacted. If documents can be redacted, then a redacted version for public viewing, omitting only the confidential, privileged, or otherwise protectable portions of the document, shall be filed. Any application that seeks to file documents under seal in their entirety should include an explanation of why redaction is not feasible.
Notwithstanding any other provision of this Protective Order, in the event that this case proceeds to trial, all information, documents, and things discussed or introduced into evidence at trial will become public and available to all members of the public, including the press, unless sufficient cause is shown in advance of trial to proceed otherwise.
TERMS AND CONDITIONS OF PROTECTIVE ORDER Definitions.
1. "CONFIDENTIAL" Information or Items: Information (regardless of how generated, stored, or maintained) or tangible things that qualify for protection under Federal Rule of Civil Procedure 26(c).
2. Challenging Party: A Party or Non-Party that challenges the designation of information or items under this Protective Order.
3. Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as their support staff).
4. Designating Party: A Party or Non-Party that designates information or items that it produces in disclosures or in responses to discovery as "CONFIDENTIAL," "ATTORNEYS' EYES ONLY," or "HIGHLY CONFIDENTIAL -- SOURCE CODE."
5. Confidential 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.
6. Expert: A person with specialized knowledge or experience in a matter pertinent to the litigation who: (1) has been retained by a Party or its counsel to serve as an expert witness or as a consultant in this action; (2)
is neither a past or current employee of any Party or of any Party's competitor, nor a person who worked on the design or programming of any of the software at issue in this case; and (3) at the time of retention, is not anticipated to become an employee of any Party or of any Party's competitor or anticipated to work on the design or programming of any of the software at issue in this case.
7. "ATTORNEYS' EYES ONLY": Information or Items: extremely sensitive "CONFIDENTIAL Information or Items," disclosure of which to another Party or Non-Party would create a substantial risk of serious harm that could not be avoided by less restrictive means.
8. "HIGHLY CONFIDENTIAL -- SOURCE CODE": Information or Items: extremely sensitive "CONFIDENTIAL Information or Items" representing computer code and associated comments and revision histories, formulas, engineering specifications, or schematics that define or otherwise describe in detail the algorithms or structure of software or hardware designs, disclosure of which to another Party or Non-Party would create a substantial risk of serious harm that could not be avoided by less restrictive means.
9. House Counsel: Attorneys who are employees of a party to this action. House Counsel does not include Outside Counsel of Record or any other outside counsel.
10. Non-Party: Any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action.
11. 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 which has appeared on behalf of that Party.
12. Party: Any Party to this action, including all of its officers, directors, employees, consultants, retained experts, and Outside Counsel of Record (and their support staffs).
13. Producing Party: A Party or Non-Party that produces disclosure or discovery material in this action.
14. 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.
15. Protected Material: Any disclosure or discovery material that is designated as "CONFIDENTIAL," "ATTORNEYS' EYES ONLY," or "HIGHLY CONFIDENTIAL -- SOURCE CODE."
16. Receiving Party: A Party that receives Disclosure or Discovery Material ...