The opinion of the court was delivered by: Hon. Stephen J. Hillman United States Magistrate Judge
DISCOVERY MATTER STIPULATED PROTECTIVE ORDER RE: CONFIDENTIAL INFORMATION
Judge: Hon. Stephen J. Hillman Courtroom: 550
To expedite the production of discovery material, to facilitate the prompt resolution of disputes over confidentiality of discovery material, to adequately protect information the parties are entitled to keep confidential, to ensure that only the materials the parties are entitled to keep confidential are subject to such treatment, and to ensure that the parties are permitted reasonably necessary uses of confidential discovery material in preparation for and in the conduct of this litigation, pursuant to Fed. R. Civ. P. 26(c), it is hereby ORDERED THAT:
I. INFORMATION SUBJECT TO THIS ORDER
A. Protected Information Generally
1. All documents, tangible things, physical objects, written discovery responses, testimony, or other information produced by the producing party in this litigation is considered "Discovery Material." This Order applies not only to Discovery Material produced in this litigation, but also to any information copied or extracted therefrom or otherwise reflecting Protected Information, in any form. Any Discovery Material containing or including confidential information may be designated as such by the producing party by marking it "CONFIDENTIAL" or "CONFIDENTIAL -- OUTSIDE COUNSEL ONLY" prior to or at the time copies are furnished to the receiving party, and shall be treated in accordance with the terms of this Order. Each of the identified categories of confidential Discovery Material shall be identified collectively in this Order as "Protected Information."
2. All Protected Information not reduced to documentary, tangible or physical form, or which cannot be conveniently designated as set forth in paragraph I.A.1 or pursuant to another confidentiality designation set forth in this Order, shall be designated by the producing party by informing the receiving party of the designation in writing.
3. Any Discovery Material (including physical objects and tangible things) made available for inspection by counsel for the receiving party prior to producing copies of items selected by the receiving party shall initially be considered, as a whole, to constitute Protected Information (unless otherwise designated at the time of inspection) and shall be subject to this Order. Thereafter, the producing party shall have a reasonable time to review and designate the appropriate documents as CONFIDENTIAL or CONFIDENTIAL -- OUTSIDE COUNSEL ONLY prior to furnishing copies to the receiving party.
4. Any Protected Information that is obtained by any party from any person pursuant to discovery in this litigation shall be used solely for purposes of this litigation. Should other parties become additional named plaintiffs in this case, whether by joinder, amendment, or class action certification, or any other means procedurally allowed by the Court, Plaintiff Home Decor Center shall be allowed to share Protected Information with any such additional named plaintiffs in this case, subject to and consistent with the terms of this Protective Order, provided that such additional named plaintiffs first sign a copy of this Protective Order. For clarity, Plaintiff Home Decor Center may not share any Protected Information with any prospective additional plaintiffs who the Court has not yet allowed to become named plaintiffs in this case, or with any additional named plaintiffs who have not signed a copy of this Protective Order.
5. Nothing in this Order shall limit any producing party's use or disclosure of its own Protected Information.
6. The following Discovery Material is not Protected Information:
a. Any Discovery Material 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 or other obligation to maintain the confidentiality of such material;
b. Any Discovery Material that the receiving party can show was already publicly known prior to the disclosure; and,
c. Any Discovery Material that the receiving party can show by written records was received by it from an alternate source that obtained the material lawfully and under no obligation of confidentiality to the producing party.
B. Protected Information Designated Confidential
1. For purposes of this Order, Protected Information designated CONFIDENTIAL shall mean all Discovery Material produced for or disclosed in connection with this action to a receiving party that constitutes confidential or commercially sensitive technical, sales, marketing, personal, or financial information of 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 in connection with this action), or information that the producing party is under a legal obligation to maintain as confidential, whether embodied in documentary, tangible or physical form, or the factual knowledge of persons, and which has been so designated by the producing party.
2. Protected Information designated CONFIDENTIAL and the contents therein shall be available only to:
a. Outside litigation counsel of record, including any outside litigation counsel who associates into this case in the future as counsel or co-counsel for any of the parties (provided such additional outside counsel first signs a copy of this Protective Order), and supporting personnel employed in the law firm(s) of outside litigation counsel of record, such as attorneys, paralegals, legal translators, legal secretaries, law clerks, project managers and litigation support personnel;
b. Up to two in-house counsel of any party with responsibility for managing this litigation, who are members of at least one state bar in good standing, and supporting personnel employed by the legal department of any party to this litigation; and up to two employees of a party who either has responsibility for making decisions dealing directly with the litigation in this action or who is assisting outside counsel in preparation for proceedings in this action.
c. Technical advisers and their necessary support personnel engaged by counsel of record for the parties, subject to the provisions of section III herein, and provided that such individuals have first been given a copy of this Order and have executed the Confidentiality Agreement attached hereto as Attachment A. The term "technical adviser" shall mean independent outside technical expert witnesses, consulting experts, or technical consultants (i.e., not employees of a party) retained by counsel of record for the parties who are deemed reasonably necessary to assist such counsel in connection with this litigation;
d. Independent contractors engaged by counsel of record for the parties, to the extent reasonably necessary to assist such counsel in connection with this litigation, including but not limited to (i) legal translators retained to translate in connection with this action; (ii) independent stenographic reporters and videographers retained to record and transcribe testimony in connection with this action; (iii) graphics or design services retained by counsel for purposes of preparing demonstrative or other exhibits for deposition, trial, or other court proceedings in the actions; (iv) non-technical jury or trial consulting services, including mock jurors provided the mock jurors have first been given a copy of this Order and have executed the Confidentiality Agreement attached hereto as Attachment A; (v) electronic discovery vendors retained to assist with the organization and management of electronic discovery; and (vi) private investigators, provided that such persons or entities have first been given a copy of this Order and have executed the Confidentiality Agreement attached hereto as Attachment A, and a signed copy has been provided to the producing party.
e. Any fact witness during the course of a deposition subject to the provisions of section V herein; and
f. The Court, its personnel, and any other person (such as a master or mediator) who serves in a judicial or quasi-judicial function, profession stenographic reporters engaged to transcribe testimony (under seal or with other suitable precautions determined by the Court), and jurors.
C. Information Designated Confidential -- Outside Counsel Only
1. For purposes of this Order, Protected Information designated CONFIDENTIAL -- OUTSIDE COUNSEL ONLY shall mean Protected Information that contains extremely sensitive information, the disclosure of which to another party would create a risk of competitive injury that could not be avoided by less restrictive means. Protected Information designated CONFIDENTIAL -- OUTSIDE COUNSEL ONLY includes, but is not limited to: (i) marketing, financial, sales, web traffic, research and development, or technical, data or information; (ii) commercially sensitive competitive information, including, without limitation, information obtained from a nonparty pursuant to a current Nondisclosure Agreement ("NDA"); (iii) information or data relating to future products not yet commercially released and/or strategic plans; (iv) trade secret, or other confidential research and development information; and, (v) commercial agreements, settlement agreements or settlement communications, the disclosure of which is likely to cause harm to the competitive position of the producing party.
2. Protected Information alternatively designated "CONFIDENTIAL OUTSIDE ATTORNEYS' EYES ONLY," "HIGHLY CONFIDENTIAL" or "RESTRICTED CONFIDENTIAL" shall be treated as if designated CONFIDENTIAL -- OUTSIDE COUNSEL ONLY. In determining whether Protected Information should be designated as CONFIDENTIAL -- OUTSIDE COUNSEL ONLY, each party agrees to use such designation only in good faith.
3. Protected Information designated CONFIDENTIAL --
OUTSIDE COUNSEL ONLY and the contents therein shall be available only to the persons or entities listed in paragraphs I.B.2.a, c, d, e and f, subject to any terms set forth or incorporated therein, and not to any person or entity listed in paragraph
II. USE OF PROTECTED INFORMATION AT HEARING OR TRIAL In the event that a party intends to use any Protected Information during any
hearing or trial, that party shall provide a minimum of two (2) business days' notice to the producing party. Subject to challenges under section IV, the parties will not oppose any reasonable request by the producing party that courtroom be sealed, if allowed by the Court, during the presentation of any testimony, evidence, or argument relating to or involving the use of any Protected Information.
III. DISCLOSURE TO TECHNICAL ADVISERS
Protected Information designated by the producing party and such copies of Protected Information as are reasonably necessary for maintaining, defending, or evaluating this litigation may be furnished and disclosed to the receiving party's technical advisers and their necessary support personnel.
B. No Disclosure Without Protective Order Subscription
No disclosure of Protected Information to a technical adviser or their necessary support personnel shall occur until that person has signed the form attached hereto as Attachment A, and a signed copy has been provided to the producing party; ...