The opinion of the court was delivered by: Hon. Ronald S. W. Lew
[PROPOSED] PROTECTIVE ORDER
Having reviewed the Stipulation for Protective Order agreed to by Plaintiff Caltex Plastics, Inc. ("Caltex") and Defendant 3M Company ("3M") through their respective counsel, and good cause appearing therefor, the Court hereby adopts and enters the Protective Order (herein, "Protective Order" or "Order"), it is hereby ORDERED as follows:
1. As used in the Protective Order, these terms have the following meanings:
a. "Documents" are materials within the scope of Fed. R. Civ. P. 34.
b. "Written Assurance" means an executed document in the form attached as Exhibit A.
c. "Technical Adviser" shall mean an independent, outside expert witness or consultant with whom counsel deems it necessary to consult and who complies with Paragraph 14.
d. "CONFIDENTIAL" information or material shall mean all information or material, regardless of form, produced for or disclosed to a receiving party that the producing party, including any party to this action and any non-party producing information or material voluntarily or pursuant to a subpoena or a court order, designates in good faith as confidential because it contains confidential research, development or commercial information as those terms are used in Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure.
e. "ATTORNEYS' EYES ONLY" information or material shall mean and is limited to CONFIDENTIAL information or materials that constitute:
(i) information, documents, or things pertaining to product designs that have not been introduced to the market, commercialized, or otherwise disclosed to the public; (ii) information or documents pertaining to the materials, methods, or processes that are or could be used by a producing party to manufacture its products; (iii) information that consists of or documents that contain highly sensitive financial, sales, and marketing information and/or strategic business planning; (iv) material that constitutes or contain a trade secret; or (v) unpublished patent applications or documents related thereto.
f. "PROTECTED INFORMATION" means information or material that has been designated "CONFIDENTIAL" or "ATTORNEYS' EYES ONLY".
g. The definitions of CONFIDENTIAL, ATTORNEYS' EYES ONLY and PROTECTED INFORMATION do not include:
(i) Publicly available materials, such as: published advertising materials, United States Department of Defense and/or Department of Navy documents regarding materials on the Qualified Product List that is available to the public at large, issued patents, published patent applications, prosecution histories and other documents available from the U.S. Patent and Trademark Office, and publications, press releases, newspaper and magazine articles, information released to the public, pleadings and other litigation-related documents filed on the public record, and information publicly filed with governmental agencies;
(ii) Any information that is or, after its disclosure to a receiving party, becomes part of the public domain as a result of publication not involving a violation of this Order;
(iii) Any information that the receiving party can show was already known to it prior to the disclosure with no obligation of confidentiality;
(iv) Any information that the receiving party can show by written records was received by it after the disclosure from a source who obtained the information lawfully and under no obligation of confidentiality to the producing party; and
(v) Any information that the receiving party can show was independently developed by it after the time of disclosure by personnel who did not have access to the producing party's PROTECTED INFORMATION.
II.Designation of Information
2. a. Any PROTECTED INFORMATION that a party wishes to designate under this Protective Order shall be marked "CONFIDENTIAL" or "ATTORNEYS' EYES ONLY" prior to or at the time copies are furnished to the receiving party. Equivalent markings that provide additional information such as the providing party name, case number, and protective order information may also be used, e.g., "(3M or Caltex) CONFIDENTIAL INFORMATION," "(3M or Caltex) ATTORNEYS' EYES ONLY," or the like. Any document or thing created by a receiving party (e.g., any interrogatory answer, pleading or exhibit) that contains information that has been designated pursuant to this Order shall bear on its face the appropriate legend, i.e., "CONFIDENTIAL", "ATTORNEYS' EYES ONLY" or an equivalent marking.
b. While the parties agree that marking of an entire multi-page document with the legends CONFIDENTIAL or ATTORNEYS' EYES ONLY is permitted if any page of that document contains CONFIDENTIAL or ATTORNEYS' EYES ONLY information, the parties also agree that they will respond to reasonable requests from opposing counsel to identify those portions of the documents that do not contain CONFIDENTIAL or ATTORNEYS' EYES ONLY.
3. All PROTECTED INFORMATION not reduced to documentary, tangible or physical form or which cannot be conveniently designated as set forth in Paragraphs 1-2 shall be designated by the producing party by informing the receiving party of the designation in writing.
4. If, during the course of discovery in this action, a party hereto, or its representatives, is authorized to inspect the other party's facilities or manufacturing processes, any documents or things produced at the time of the inspection shall be deemed ATTORNEYS' EYES ONLY and shall be treated as such. Following the inspection, the producing party will promptly review any documents or things to be produced and mark appropriate documents as CONFIDENTIAL or ATTORNEYS' EYES ONLY according to Paragraphs 1 and 2 provided herein, and then provide copies of the designated documents to the inspecting party.
5. It is contemplated that a party may make available certain of its files for inspection by the other party, which files may contain PROTECTED INFORMATION as well as non-protected material, and that following such inspection the inspecting party will designate documents to be copied and the copies furnished or produced to it. In order to protect any PROTECTED INFORMATION contained in the files produced for inspection, all documents made available for such inspection shall be assumed to be ATTORNEYS' EYES ONLY and shall be treated as such at the time of inspection. When the inspecting party designates the documents it wishes copied, the producing party will mark appropriate documents as CONFIDENTIAL or ATTORNEYS' EYES ONLY according to Paragraphs 1 and 2 provided herein, and then provide copies of the designated documents to the inspecting party.
6. Whenever a deposition involves a disclosure of PROTECTED INFORMATION the following procedure shall be implemented:
a. At the request of the party whose PROTECTED INFORMATION is disclosed, the reporter shall mark those pages of the transcript containing PROTECTED INFORMATION as either CONFIDENTIAL or ATTORNEYS' EYES ONLY according to Paragraphs 1 and 2 provided herein. Such request shall be made on the record whenever possible, but any party may designate portions of the transcript of depositions as PROTECTED INFORMATION after transcription as in the case of any other document or tangible thing, provided that written notice of such designation is promptly given to the other party. Following such notice, the parties shall confer, if necessary, as to the most convenient way to segregate the designated portions of this transcript. The parties shall not disseminate a deposition transcript or the contents thereof beyond the persons designated in Paragraph 9 hereof for a period of two (2) weeks after receipt in order to give adequate time for such notice, except that portions of transcripts may be filed under seal with the court and used in accordance with Paragraph 7 in connection with these proceedings at any time.
b. The cover of any deposition transcript that contains PROTECTED INFORMATION shall be prominently marked with the applicable legend or legends referred to in Paragraph 2. The dissemination of all portions of deposition transcripts designated as PROTECTED INFORMATION shall be limited to the persons identified in Paragraphs 9 and 10 hereof.
7. If any PROTECTED INFORMATION is included with or the content thereof is in any way to be disclosed in any pleading, motion, deposition transcript, or other paper filed with the court, such documents and related materials shall be filed under seal in accordance with Local Rule 79-5, using the procedures set forth in Sections V(A) and V(C)(D) of the United States District Court for the Central District of California General Order No. ...