The opinion of the court was delivered by: Paul L. Abrams United States Magistrate Judge
[PROPOSED] PROTECTIVE ORDER
WHEREAS, to facilitate the production and receipt of information during discovery in the above captioned litigation ("the Litigation"), the parties agree and stipulate, through their respective counsel, to the entry of the following Protective Order for the protection of CONFIDENTIAL MATERIAL and RESTRICTED MATERIAL (as defined herein) that may be produced or otherwise disclosed during the course of this Litigation by any party or non-party.
The Court being fully advised in the premises and has found good cause for its entry.
Accordingly, IT IS HEREBY ORDERED THAT the following terms and conditions shall govern the handling of discovery materials in the Litigation:
1. This Protective Order does not and will not govern any trial proceedings in this Litigation, but will otherwise be applicable to and govern all depositions, documents produced in response to requests for production of documents or subpoenas, answers to interrogatories, responses to requests for admissions and all other discovery taken in this matter pursuant to the Federal Rules of Civil Procedure, (collectively, "RECORDS") which a party or third-party (hereinafter, a "disclosing party") designates as "CONFIDENTIAL MATERIAL" or "RESTRICTED MATERIAL" hereafter furnished, directly or indirectly, by or on behalf of any party in connection with this action.
2. In designating RECORDS as "CONFIDENTIAL MATERIAL" or "RESTRICTED MATERIAL," a disclosing party shall make such a designation of CONFIDENTIAL MATERIAL only for RECORDS which that disclosing party in good faith believes contains non-public, confidential or sensitive information, including, but not limited to, trade secrets, research, design, development, financial, technical, marketing, planning, personal or commercial information, as such terms are used in Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure and any applicable case law interpreting Rule 26(c)(1)(G) or the former Rule 26(c)(7). The designation of RECORDS as "RESTRICTED MATERIAL," shall be reserved for CONFIDENTIAL MATERIAL that constitutes, reflects, or concerns extremely sensitive, highly confidential, non-public information consisting of either trade secrets, proprietary or other highly confidential data, know how, business, financial, strategic, or commercial information (including information concerning business plans, technical data, and non-public designs), the disclosure of which would create a substantial risk of competitive or business injury to the party producing the information.
3. All such "CONFIDENTIAL MATERIAL" or "RESTRICTED MATERIAL" designations shall be made in good faith by the disclosing party and be made at the time of disclosure, production, or tender, provided that the inadvertent failure to so designate does not constitute a waiver of such claim, and a producing party may so designate a document after such document has been produced, with the effect that such document is thereafter subject to the protections of this Protective Order. Designation of "RESTRICTED MATERIAL" shall constitute a representation that such RECORDS have been reviewed by an attorney for the disclosing party and that there is a valid basis for such designation.
4. CONFIDENTIAL MATERIAL and RESTRICTED MATERIAL shall not include any RECORDS which:
a. Have been (and remain) or become lawfully in the possession of the receiving party through communications other than production or disclosure in this action by the disclosing party, for example, as a result of legitimate business dealings between the parties, unless those documents are covered by a separate non-disclosure or confidentiality agreement, in which case the receiving party may continue to use such documents in the course of their business subject to those agreements;
b. Have been or become part of the public domain by publication or otherwise and not due to any unauthorized act or omission on the part of the receiving party; or
c. May not under law be treated as confidential.
Nothing herein shall impose any restriction on the use or disclosure by a party of its own documents or information.
5. RECORDS designated as "CONFIDENTIAL MATERIAL," or copies or extracts therefrom and compilations and summaries thereof, may be disclosed, summarized, described, characterized, or otherwise communicated or made available in whole or in part only to the following persons:
a. the parties' outside counsel of record in this action;
b. any paralegal assistants, stenographic and clerical employees working under the direct supervision of such counsel, and organizations retained by counsel to provide litigation support services in this action and the employees of those organizations;
c. no more than five (5) designated employees, per party whose assistance is needed by counsel for the purposes of this litigation, subject to and conditioned upon compliance with Paragraph 7 herein;
d. any person not employed by a party who is expressly retained or sought to be retained by any attorney described in paragraph 3(a) to assist as an expert in preparation of this action for trial, with disclosure only to the extent necessary to perform such work, subject to and conditioned upon compliance with Paragraph 7 herein;
e. any witnesses who appear for deposition or trial in this matter, during the course of their testimony, upon the witness being advised of the need and ...